L'-vtsioa 

Srctloo 


JX/^7/, 

.S  4--  2. 


Carnegie  Endowment  for  International  Peace 

DIVISION  OF  INTERNATIONAL  LAW 


The  Status  of  the 
International  Court  of  Justice 


WITH  AN  APPENDIX  OF  ADDRESSES  AND 
OFFICIAL  DOCUMENTS 


BY 


JAMES  BROWN  SCOTT,  A.M.,  J.U.D.,  LL.D. 

Member  of  the  Institute  of  International  Lavj-,  Technical  Delegate  of 
the  United  States  to  the  Second  Hague  Peace  Conference-, 

Lecturer  on  International  Lanjo  and  Diplomacy 
in  Johns  Hopkins  Uninjersity 


NEW  YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH:  35  West  S2kd  Street 

LONDON,  TORONTO,  MELBOURNE,  AND  BOMBAY 
HUMPHREY  MILFORD 

1916 


COPYRIGHT  1916 

BY  THE 

CARNEGIE  ENDOWMENT  FOR  INTERNATIONAL  PEACE 

Washington,  D.  C. 


THE  QUINN  4 800EN  CO.  PRESS 
RAHWAY.  N.  J. 


PREFACE 


“ As  is  well  known,  the  American  delegation  to  the  Second  Peace 
Conference  was  directed  by  Mr.  Root,  as  Secretary  of  State,  to  pre- 
sent a proposal  for  an  International  Court  of  Justice.  Germany  and 
Great  Britain  approved  the  plan  and  a joint  project  of  the  three  na- 
tions was  laid  before  the  Conference.  France,  although  not  tech- 
nically a party,  warmly  supported  the  idea.  A draft  convention 
concerning  the  Court,  which  by  this  time  was  known  as  the  Court 
of  Arbitral  Justice,  was  adopted  by  the  Conference  and  its  es- 
tablishment recommended  through  diplomatic  channels. 

“ It  seems  to  the  officers  of  the  American  Society  for  Judicial 
Settlement  of  International  Disputes  that  the  time  has  come  for 
a somewhat  elaborate  account  of  the  present  status  of  the  proposal, 
so  that  the  partisans  of  judicial  settlement  shall  be  informed  not 
only  as  to  the  original  proposition,  but  as  to  the  steps  which  have 
been  taken  to  realize  it.  Documents  too  long  for  quotation  in  the 
article  have  been  included  in  an  appendix,  which  will,  it  is  hoped, 
be  found  a useful  supplement  to  the  statements  contained  in  the 
text  and  place  before  the  reader  the  material  necessary  for  a cor- 
rect understanding  of  the  draft  convention  adopted  by  the  Sec- 
ond Conference,  and  the  process  by  which  that  fortunate  result 
was  reached.” 


Such  was  the  preface  to  the  tractate  published  but  a few  weeks 
(to  be  accurate,  in  the  month  of  July)  before  the  outbreak  of  the 
great  war  in  August  1914.  The  Honorable  Elihu  Root  felt  justified 
in  saying  in  a letter  to  the  undersigned  that  “ It  is  very  clear  and 
satisfactory  and  it  came  at  just  the  right  time,  because  on  all  these 
subjects  we  shall  have  to  take  a new  departure  after  the  war,  and 
this  paper  is  a summing  up  of  the  status  of  peaceable  settlement 

iii 


IV 


PREFACE 


at  the  close  of  the  period.  It  ought  to  be  in  permanent  book  form.” 
With  the  permission  of  the  Judicial  Settlement  Society,  of  which 
the  undersigned  is  Secretary,  the  original  pamphlet  now  appears 
“ in  permanent  book  form,”  without  a change  of  any  kind,  unless  it 
be  the  correction  of  a typographical  error. 

James  Brown  Scott, 

Director  of  the  Division  of  International  Law. 

Washington,  D.  C., 

February  28,  ipi6. 


CONTENTS 


Page 

The  Status  of  the  International  Court  of  Justice i 

State  of  opinion  to-day 2 

Reasons  for  and  objects  of  its  proposal 3 

Previous  history  of  movement  in  favor  of  arbitration 4 

Sketch  of  the  present  movement i2 

The  so-called  Permanent  Court  of  Arbitration 17 

Effect  of  Hague  Conference  on  arbitration 22 

Distinction  between  arbitration  and  judicial  settlement  fundamental....  23 
An  International  Court  of  Justice  a necessary  complement  to  arbitration  28 

Project  of  the  American  delegates 30 

Germany  and  Great  Britain 31 

The  main  features  of  the  proposed  International  Court 31 

Why  the  Court  was  not  actually  established  at  the  Second  Hague 

Conference  38 

Attitude  of  powers  proposing  the  Court 40 

Efforts  to  establish  Court  since  Second  Hague  Conference 41 

Objections  raised  to  proposed  Court 45 

Proposal  of  Court  for  limited  number  of  powers 48 

Appendix  A. 

1.  Mr.  Choate’s  address  on  the  American  project  for  a Permanent  Court 

of  Arbitral  Justice,  August  i,  1907 55 

2.  Mr.  Scott’s  address  on  the  elements  entering  into  the  composition  of 

an  International  Court  of  Arbitral  Justice,  August  i,  1907 60 

3.  Mr.  Bourgeois’  remarks  at  session  of  August  3,  1907,  of  the  first 

subcommission  of  the  first  commission 70 

4.  Mr.  Choate’s  address  on  the  composition  of  the  proposed  Court  of 

Arbitral  Justice,  September  5,  1907 73 

5.  Mr.  Choate’s  remarks  on  the  selection  of  the  judges  of  the  Court  of 

Arbitral  Justice  by  the  principle  of  election,  September  18,  1907 78 

Appendix  B. 

1.  American  project  for  a Permanent  Court  of  Arbitration 80 

2.  Project  for  a Permanent  Court  of  Arbitration  drafted  by  the  Ameri- 

can delegation,  upon  which  the  joint  project  of  Germany,  Great 
Britain  and  the  United  States  was  based 81 

3.  Draft  Convention  for  the  establishment  of  the  Court  of  Arbitral 

Justice 84 

4.  Proposal  for  establishment  of  a Court  of  Arbitral  Justice  by  and  for 

Germany,  the  United  States,  Austria-Hungary,  France,  Great  Britain, 
Italy,  Japan,  the  Netherlands,  Russia 91 


Digitized  by  the  Internet  Archive 
in  2017  with  funding  from 
Princeton  Theological  Seminary  Library 


https://archive.org/details/statusofinternat00scot_0 


The  Status  of  the  International  Court 
of  Justice 


When  the  American  delegation,  acting  under  specific  instruc- 
tions from  Mr.  Elihu  Root,  at  that  time  Secretary  of  State,  pro- 
posed to  the  Second  Peace  Conference,  held  at  The  Hague  in  1907, 
the  creation  of  a truly  permanent  international  court  of  justice, 
the  proposal,  which  had  long  been  cherished  by  enlightened  think- 
ers, ceased  to  be  academic;  for  a country,  not  the  least  respected 
in  the  society  of  nations,  had  not  only  confessed  its  faith  publicly 
in  the  feasibility  of  such  an  institution  and  the  services  which  it 
could  render,  but  had  actually  called  upon  the  nations  in  confer- 
ence assembled  to  co-operate  in  its  establishment.  The  idea  was 
neither  new  nor  novel;  but  its  submission  by  a government  to  an 
international  conference  was  an  event  of  no  mean  magnitude.  The 
delegates  were  skeptical  and  expressed  misgivings;  but  when  Ger- 
many and  Great  Britain  united  in  a project  for  the  creating  of 
such  a court,  with  the  loyal  and  unquestioning  support  of  France, 
it  was  apparent  that  the  proposal  would  have  to  be  reckoned  with. 

As  the  result  of  weeks — indeed  months — of  discussion,  in 
which  the  friends  and  the  foes  of  the  new  institution  expressed 
their  views,  a draft  convention  of  thirty-five  articles  was  adopted, 
providing  for  the  organization,  the  jurisdiction,  and  the  procedure 
of  the  tribunal,  which  by  this  time  had  come  to  be  known  as  the 
Court  of  Arbitral  Justice.  The  draft  was  and  still  remains  a torso,, 
because  of  the  inability  of  the  Conference  to  agree  upon  a method 
generally  satisfactory  of  appointing  the  judges;  but  it  was  felt  that 
this  objection,  however  serious  it  might  be,  was  one  which  time 
could  remove,  and  the  Conference  remitted  this  question  to  the 
channels  of  diplomacy,  recommending  “ to  the  Signatory  Powers 
the  project  * * * of  a convention  for  the  establishment  of  a Court 
of  Arbitral  Justice  and  its  execution  as  soon  as  an  agreement  should 
be  reached  upon  the  choice  of  judges  and  the  constitution  of  the 
Court.” 


2 


THE  STATUS  OF  THE 


If  we  bear  in  mind  the  difficulties,  apparently  insurmountable, 
which  stood  in  the  way  of  the  creation  of  the  Permanent  Court  of 
Arbitration  by  the  First  Hague  Conference,  it  is  evident  that  a 
proposal  to  create  a permanent  International  Court  of  Justice  would 
have  been  rejected,  if  it  had  been  laid  before  that  august  assemblage. 
That  it  was  favorably  considered  and  an  agreement  reached  upon 
its  institution  by  the  Second  Conference  shows  the  progress  that 
had  been  made  in  the  interval,  even  although  the  temple  of  justice 
lacked  the  final  touches,  as  it  came  from  the  builders’  hands. 
Time  is  the  great  ally  of  progress,  and  there  is  every  reason  to 
believe  that,  if  not  definitely  constituted  in  the  interval  between  the 
second  and  the  third  conference,  public  opinion  will  enable  the 
Third  Conference  to  complete  the  structure. 

The  situation  to-day  is  very  different  from 
The  State  of  that  which  existed  when  the  proposal  was 

Opinion  To-day.  made  to  the  Second  Conference.  It  would  be 

unfair  to  say  that  the  need  or  usefulness  of 
an  international  court  of  justice  had  not  been  discussed;  but  it 
is  strictly  within  the  truth  to  assert  that  it  had  not  been  considered 
by  what  we  are  pleased  to  call  practical  men,  much  less  by  states- 
men in  office.  Now  and  then,  and  here  and  there,  a publicist  had 
proposed  the  creation  of  such  an  institution;  but  the  plan  fell,  as 
it  were,  stillborn.  The  publicists  generally  did  not  take  it  up  and 
did  not  treat  it  seriously.  The  influence,  however,  of  the  Hague 
Conference  is  so  great  and  its  recommendations  so  persuasive  that 
what  had  been  looked  upon  as  Utopian  was  seen  to  have  the 
germs  of  possibility  within  it.  Individual  publicists,  professors  of 
international  law,  learned  societies,  and  men  of  affairs  now  con- 
sider the  proposed  Court  not  merely  as  feasible  but  as  essential 
to  the  world’s  progress.  A sentiment  has  been  created  in  its 
behalf,  and  this  sentiment,  largely  concentrated  in  the  United 
States,  has  made  its  way,  to  use  a theological  expression,  in  partibus 
infidelium. 

The  burden  of  proof  has  shifted  or  is  shifting,  and  the  opponent 
of  the  institution  feels  required  to  justify  his  opposition  and  not 
the  partisan  his  faith.  It  is  not  suggested  that  the  battle  is  won, 
for  much  remains  to  be  done.  It  is  believed,  however,  that  forces 
have  been  called  into  being  which  will  result  in  ultimate  victory. 


INTERNATIONAL  COURT  OF  JUSTICE 


3 


and  it  may  be  said,  almost  without  fear  of  contradiction,  that  what 
was  the  hope  of  the  few  has  become  the  conviction  of  the  many, 
and  that  the  sentiment  confined  to  localities  is  becoming  the  pre- 
vailing opinion  of  nations.  The  presentation  of  the  proposal  by 
the  American  delegation  to  and  its  adoption  by  the  Second  Con- 
ference was  an  international  event.  The  establishment  of  the 
Court  is  a matter  of  international  policy,  and  its  success  seems  only 
to  be  a question  of  time ; for  even  although  its  creation  be  delayed 
and  although  many  of  its  partisans  now  living  may  not  see  it 
called  into  being,  the  years  that  will  in  any  event  elapse  before  it 
administers  justice  between  nations,  while  important  to  the 
individual,  are  as  nothing  in  the  lives  of  nations. 

In  view  of  these  circumstances  it  seems  well 
Reasons  for  to  state,  however  briefly  and  imperfectly,  the 

and  Objects  of  reasons  which  have  led  to  its  proposal,  the 

Its  Proposals.  arguments  which  have  been  advanced  for  its 

creation,  the  services  which  it  is  believed  that 
it  will  render  to  the  society  of  nations,  and  to  make  clear  the 
present  status  of  the  proposition. 

The  first  article  of  the  draft  convention  referred  to  states  within 
the  compass  of  a single  paragraph,  and  in  clear  and  unmistakable 
terms,  not  merely  the  aims  and  purposes  of  the  advocates  of  a 
permanent  court  of  international  justice,  but  also  its  relation  to  the 
so-called  Permanent  Court  of  Arbitration.  “ With  a view,”  it 
is  said,  “ of  promoting  the  cause  of  arbitration,  the  contracting 
powers  agree  to  constitute,  without  altering  the  status  of  the 
Permanent  Court  of  Arbitration,  a court  of  arbitral  justice  of  free 
and  easy  access,  composed  of  judges  representing  the  various 
juridical  systems  of  the  world  and  capable  of  insuring  continuity 
in  arbitral  jurisprudence.”  As  the  full  import  of  this  article  will 
be  explained  later,  it  is  not  deemed  advisable  to  comment  upon  it 
here  further  than  to  say  that  a permanent  court  was  contemplated 
to  be  composed  of  judges  not  appointed  for  the  particular  case  to 
be  decided,  but  selected  at  the  time  of  constituting  the  court.  The 
judges  were  to  be  chosen  in  such  a way  that  they  would  bring 
to  the  performance  of  their  duty  both  knowledge  and  experience 
acquired  by  years  of  training  in  different  legal  systems.  By  reason 
of  the  permanency  of  the  judges  so  chosen,  it  was  felt  that  there 


4 


THE  STATUS  OF  THE 


would  be  continuity  in  their  decisions,  with  the  result  that  interna- 
tional law  would  be  developed  by  its  judgments,  just  as  national 
law  is  developed  by  the  decisions  of  national  courts.  Finally,  it 
was  meant  to  be  free  and  easy  of  access,  that  is  to  say,  open  to  the 
contracting  nations  as  national  courts  are  open  to  litigants,  and  easy 
of  access  because  it  would  be  an  existing  court,  not  one  whose 
judges  would  need  to  be  chosen  for  each  case  submitted  to  it. 

Such  is  in  briefest  terms  the  proposal  of  the  delegations  of  Ger- 
many, the  United  States,  and  Great  Britain,  a proposal  concurred 
in  by  the  French  delegation,  although  it  was  not  a party  to  the  proj- 
ect when  originally  presented.  It  will  be  observed,  and  the  matter 
is  mentioned  here  by  reason  of  its  importance,  that  the  Permanent 
Court  of  Arbitration  devised  by  the  First  Hague  Conference  is  not 
to  be  altered.  It  is  to  exist,  and  is  not  to  be  supplanted  by  the 
newer  institution.  The  nations  are  to  choose  one  or  the  other,  ac- 
cording to  the  nature  of  the  controversy,  or  according  to  their 
sovereign  pleasure.  The  question  naturally  presents  itself : What 
progress  has  been  made  toward  its  establishment  ? But,  as  the  prop- 
osition could  not  have  been  made  in  1907  unless  the  principle  of 
arbitration  had  been  accepted  by  the  nations  so  as  to  suggest  the 
need  of  a permanent  court  in  which  to  pass  upon  and  decide  con- 
troversies arising  between  nations,  it  seems  advisable  to  trace  briefly 
the  movement  in  favor  of  arbitration  which,  beginning  with  the  Jay 
Treaty  of  1794,  between  Great  Britain  and  the  United  States,  cul- 
minated at  the  First  Hague  Conference  by  the  creation  of  the  so- 
called  Permanent  Court  and  the  Code  of  Arbitral  Procedure,  con- 
tained in  the  Convention  for  the  Pacific  Settlement  of  International 
Disputes,  adopted  by  the  Conference,  and  since  accepted  by  the  na- 
tions at  large. 

It  will  also  be  necessary  to  consider  the  provisions  of  the 
Permanent  Court  of  Arbitration,  its  advantages,  which  are  many, 
and  its  defects,  which  are  grave,  before  taking  up  in  detail  the  pro- 
posed court  of  international  justice. 

Two  extracts  from  two  distinguished 
European  publicists,  the  one  written  during 
the  throes  of  the  French  Revolution,  and 
the  other  after  the  close  of  the  revolution- 
ary wars  and  the  fall  of  the  Empire,  will  perhaps  best  show  the 


Previous  History 
of  Movement  in 
Favor  of  Arbitration 


INTERNATIONAL  COURT  OF  JUSTICE  5 

state  of  mind  obtaining  at  these  two  periods.  The  first,  George 
Friedrich  von  Martens,  justly  regarded  as  one  of  the  founders  of 
international  law,  said  of  arbitration,  that  “ this  measure,  much 
used  during  the  whole  of  the  Middle  Ages,  has  not  been  entirely 
abandoned  up  to  the  present  day,  but  the  examples  of  arbitration 
offered  and  accepted  have  become  rare,  and  more  rare  from  an  ex- 
perience of  the  drawbacks  which  seem  to  be  inseparable  from  this 
method,  which  is  ordinarily  insufficient,  especially  because  of  the 
lack  of  an  executive  power.”  The  second  writer,  likewise  a Ger- 
man publicist  of  distinction  and,  like  Martens,  a man  of  wide  ex- 
perience and  of  broad  knowledge,  said  “ this  method  has  been  al- 
most entirely  neglected  for  several  centuries.  To  judge  by  the 
manifestoes  and  proclamations,  a sovereign  never  made  war  except 
in  spite  of  himself,  and  after  having  done  and  tried  everything  to 
prevent  it.  Why  do  we  not  return  to  arbitration?  At  most  we 
accept  the  mediation  of  a third  power,  but  this  is  usually  ineffective. 
There  is  no  longer  anything  but  war,  so  to  speak,  which  can  insure 
the  inviolability  of  the  laws.” 

If,  however,  the  outlook  upon  the  Continent  was  dark  and  ap- 
parently hopeless.  Great  Britain  and  its  vigorous  offspring  on  the 
other  side  of  the  Atlantic  had  already  resorted  to  arbitration  for 
the  settlement  of  their  outstanding  disputes  and  had  brought  again 
into  the  practice  of  nations  the  agency  of  peaceful  settlement  which 
in  the  past  hundred  years  has  been  so  productive  of  beneficial  re- 
sults. To  understand  the  reasons  which  led  Great  Britain  and  the 
United  States  to  agree  to  submit  their  existing  disputes  to  arbitra- 
tion and,  by  inserting  arbitral  clauses  in  the  Jay  Treaty,  “ to  return 
to  arbitrators,”  to  employ  the  language  of  Kluber,  it  is  advisable 
to  premise  some  general  observations. 

First,  as  to  Great  Britain.  While  it  is  true  that  Mr.  Jay  negoti- 
ated the  treaty  with  Lord  Grenville,  at  that  time  Secretary  of  For- 
eign Affairs,  it  is  believed  that  Mr.  Pitt’s  Cabinet  was  inclined  to^ 
arbitration  because  of  the  presence  in  it  of  the  first  Lord  Liverpool, 
who  was  president  of  the  Board  of  Trade  and  Chancellor  of  the 
Duchy  of  Lancaster : an  expert  in  commercial  matters,  and  an  un- 
hesitating and  outspoken  advocate  of  arbitration.  In  a work  pub- 
lished in  1785  and  entitled  “A  General  Collection  of  Treaties  Be- 
tween Great  Britain  and  Other  Powers  from  1648  to  1783,”  His 


6 


THE  STATUS  OF  THE 


Lordship  called  particular  attention  to  the  arbitral  treaties  con- 
cluded by  Cromwell.  He  mentions  them  as  “ of  a piece  with  all 
the  rest  of  Cromwell’s  negotiations,”  and  “ that  they  speak  so  well 
for  themselves  as  not  to  need  illustration.”  As  his  toryism  was  un- 
questioned, Lord  Liverpool  must  indeed  have  been  a convinced 
partisan  of  arbitration,  for  in  those  days  commendation  of  Crom- 
well was  far  from  popular  and  almost  treasonable  in  official  circles. 
Nevertheless  Lord  Liverpool  felt  justified  in  saying  that  Cromwell’s 
treaties  of  arbitration  “ illustrate  the  bright  side  of  this  man,  who, 
in  the  light  these  particulars  shew  him,  is  worthy  of  imitation; 
therefore  those  who  write  or  speak  of  him  with  an  invidious  warmth 
should  consider,  if  these  facts  be  true  and  they  cannot  shew  the 
same  in  behalf  of  their  favorite  kings,  what  a terrible  sarcasm  it  is 
upon  them  that  a man  whom  they  vilify  and  abuse  is  proved  to 
have  been  infinitely  wiser  and  honester  than  either  such  kings  or 
their  advocates ; and  consequently,  in  abusing  him,  express  their  con- 
tempt for  virtue,  and  at  the  same  time  make  their  kings  less  estima- 
ble than  the  person  whom  they  would  have  wicked  beyond  expres- 
sion.” 

It  is  to  be  presumed  that  in  negotiations  of  a commercial  char- 
acter the  views  and  the  advice  of  the  president  of  the  Board  of 
Trade  would  exercise  no  little  influence  upon  his  colleague,  the  Sec- 
retary of  State  for  Foreign  Affairs. 

Next,  as  to  the  United  States.  If  Franklin  is  to  be  taken  as 
representing  public  opinion,  it  is  clear  that  in  the  earliest  days  of 
our  history  there  was  not  only  a strong  sentiment  in  favor  of  peace- 
ful settlement,  but  in  favor  of  arbitration  and  of  judicial  decision 
of  what  may  be  considered  international  disputes.  For  whatever 
may  now  be  the  position  of  the  states  of  the  American  Union,  there 
can  be  little  doubt  that  during  the  Revolution  and  under  the  Articles 
of  Confederation  they  regarded  themselves  as  little  less  than 
sovereign,  and  that  they  considered  controversies  between  them  as 
disputes  between  sovereignties. 

In  the  midst  of  the  American  Revolution,  Franklin  wrote : 
“ We  make  daily  great  improvement  in  natural,  there  is  one  I hope 
to  see  in  moral,  philosophy — the  discovery  of  a plan  which  will  in- 
duce and  oblige  nations  to  settle  their  disputes  without  first  cut- 
ting one  another’s  throats.”  And  in  the  following  passage  he 


INTERNATIONAL  COURT  OF  JUSTICE  7 

pointed  out  the  method  which  has  prevented  “ the  throat  cutting  ” 
to  which  he  and  his  kind  objected : 

“ When  will  mankind  be  convinced  that  all  wars  are  follies,  very 
expensive,  and  very  mischievous,  and  agree  to  settle  their  differences 
by  arbitration  ? ” 

The  plan  which  he  had  in  mind  was  the  arbitration  of  interna- 
tional disputes  instead  of  their  adjustment  by  force,  and  the  reduc- 
tion of  armament  by  compact.  It  may  be  admitted  that  the  good 
doctor  was  ahead  of  his  time,  but  not  so  far  ahead  as  to  question 
his  standing  as  a practical  man  of  affairs.  Again,  the  United  States 
in  Congress  assembled  was  in  favor  of  the  peaceable,  indeed  judicial, 
settlement  of  international  controversies ; and  naturally  so,  because 
the  charters  of  the  different  colonies  frequently  overlapped,  and  the 
states  were  unwilling  to  renounce  what  the  colonies  had  claimed. 
Diplomatic  adjustment  by  commissioners  was  frequently  resorted 
to,  but  failed  to  commend  itself  in  the  long  run.  Therefore  the 
Congress  provided  in  the  Articles  of  Confederation  a method  of  set- 
tling disputes  between  the  confederated  states,  which  are  expressly 
declared  to  be  sovereign,  by  special  tribunals  or  commissions,  the 
commissioners  or  judges  of  which  should  be  chosen  for  the  particu- 
lar case  for  the  settlement  of  “ all  disputes  and  differences  now  sub- 
sisting or  that  hereafter  may  arise  between  two  or  more  states  con- 
cerning boundary,  jurisdiction,  or  any  other  cause  whatever.”  The 
method  as  tried  by  the  temporary  commission  did  not,  as  in  the  case 
of  diplomatic  adjustment,  commend  itself.  It  was,  therefore,  re- 
placed by  a permanent  court,  namely,  the  Supreme  Court  of  the 
United  States,  which  was  invested  with  the  jurisdiction  formerly 
conferred  by  the  Ninth  Article  upon  temporary  commissions.  At 
the  time,  therefore,  of  Jay’s  Treaty  mixed  commissions  had  been 
created  to  pass  upon  and  to  determine  disputes  between  the  states; 
and  finally,  a permanent  tribunal  had  been  created  by  the  Constitu- 
tion for  the  judicial  decision  of  controversies  between  the  states  and 
which  has  constantly  and  satisfactorily  settled  disputes  between  the 
states.  It  was  natural,  therefore,  that  the  statesmen  of  the  young 
republic  should  look  with  a friendly  eye  upon  arbitration  or  judicial 
settlement  when  diplomacy  had  failed  to  settle  international  contro- 
versies. 

But  we  are  not  without  positive  knowledge  and  we  do  not  need 


8 


THE  STATUS  OF  THE 


to  resort  to  conjecture.  The  American  negotiator  of  the  Treaty  of 
1794  was  John  Jay,  and  the  treaty  appropriately  bears  his  name. 
He  had  been  Secretary  of  State  for  Foreign  Affairs  under  the  Con- 
federacy, and  held  that  office  under  the  Constitution  until  he  was 
succeeded  by  Mr.  Jefferson.  He  was  the  first  Chief  Justice  of  the 
Supreme  Court.  As  Secretary  of  State  for  Foreign  Affairs  he  rec- 
ommended arbitration,  and  as  Chief  Justice  he  was  fortunate  enough 
to  put  his  recommendation  into  effect.  As  Secretary  of  State  he 
sent  a report,  dated  April  21,  1785,  to  Congress,  recommending  that 
“ an  effective  measure  should  immediately  be  taken  to  settle  all  dis- 
putes with  the  Crown  of  Great  Britain,”  respecting  the  northeastern 
boundary  of  the  United  States.  He  suggested  that  the  papers  in 
the  case  “ should  be  transmitted  to  the  Minister  Plenipotentiary  of 
the  United  States  at  that  Court,  with  instructions  to  present  a 
proper  representation  of  the  case  and  to  propose,  that  commissioners 
be  appointed  to  hear  and  finally  decide  the  disputes.”  The  report 
not  merely  advises  that  the  disputes  be  referred  to  commissioners ; 
it  contains  all  necessary  details  concerning  their  appointment  and 
the  procedure  to  be  followed  by  them. 

No  action  appears  to  have  been  taken  by  Congress  upon  this 
epoch-making  proposal;  and  when  President  Washington  assumed 
office  under  the  Constitution,  the  disputes  with  Great  Britain  were 
still  outstanding.  Mr.  Jay  had  been  appointed  Chief  Justice,  but,  as 
has  been  said,  he  acted  as  Secretary  of  State  until  Mr.  Jefferson 
assumed  the  office  upon  his  return  from  France.  Therefore,  doubt- 
less upon  the  recommendation  of  Mr.  Jay,  President  Washington 
sent,  under  date  of  February  9,  1790,  tO'  the  first  Congress  under 
the  Constitution  a copy  of  Jay’s  report,  stating  not  merely  that  “ it 
is  desirable  that  all  questions  ” with  Great  Britain  but  that  “ all 
questions  between  this  and  any  other  nations  be  speedily  and  amica- 
bly settled.”  It  is  to  be  observed  that  Jay’s  original  recommenda- 
tion that  disputes  with  Great  Britain  be  settled  by  commissions  was 
enlarged  and  broadened  in  its  scope  so  as  to  include  “ all  questions 
between  this  and  any  other  nations,”  by  President  Washington,  who 
knew  from  actual  experience  in  the  field,  as  Jay  did  not,  the  hard- 
ships of  war.  But  this  is  not  all.  To  be  settled  amicably,  Washing- 
ton knew  that  they  should  be  speedily  settled,  because  trifling  dis- 
putes may  become  by  delay  and  mismanagement  grave  political  is- 


INTERNATIONAL  COURT  OF  JUSTICE  9 

sues.  We  are  thus  in  a position  to  understand  why  the  United 
States  proposed  arbitration,  and  why  Great  Britain  accepted  it. 

The  Congress  under  the  Constitution,  like  the  Congress  under 
the  Confederation,  failed  to  take  action,  but  the  stirring  events  of 
the  French  Revolution,  the  causes  of  friction  that  daily  arose  be- 
tween Great  Britain  and  the  United  States,  convinced  President 
Washington  that  the  two  nations  were  rapidly  drifting  into  war, 
which  could  only  be  averted  by  a treaty  between  the  two  countries 
which  would  settle  outstanding  difficulties.  Naturally,  he  turned  to 
Jay,  and  the  Chief  Justice  did  not  fail  him.  He  accepted  the  mis- 
sion to  England ; he  negotiated  the  treaty  which  bears  his  name,  and 
which  is  an  imperishable  monument  to  his  wisdom  and  humanity, 
his  patriotism,  and  self-sacrifice.  He  preserved  peace;  he  intro- 
duced into  the  practice  of  nations  the  greatest  agency  for  maintain- 
ing peace ; but  he  sacrificed,  as  he  knew  he  would,  his  political  career. 
In  the  Senate  the  treaty  was  mutilated  and  was  only  advised  and 
consented  to  by  a narrow  margin.  The  appropriations  necessary  to 
put  it  into  effect  were  carried  by  a majority  of  three  in  the  House 
of  Representatives.  Jay  was  burned  in  effigy  and  both  Jay  and  his 
treaty  were  damned  from  one  end  of  the  country  to  the  other.  It  is 
a fact,  however,  that  Jay’s  reputation  as  a benefactor  of  his  kind 
rests  upon  the  firm  foundations  of  this  treaty,  and  that  the  policy 
of  the  United  States  in  its  very  beginning  in  the  matter  of  arbitra- 
tion and  peaceful  settlement  was  determined  by  him.  The  articles 
of  Jay’s  treaty  dealing  with  arbitration  are  three  in  number — the 
fifth,  sixth  and  seventh,  to  which  may  be  added  the  eighth,  relating 
to  expenses.  The  fifth  refers  to  the  final  decision  of  the  commis- 
sioners the  determination  of  the  St.  Croix  River,  forming  a part  of 
the  boundary  between  the  two  countries;  the  sixth,  concerning  the 
losses  and  damages  to  British  creditors  by  reason  of  impediments 
interposed  to  the  recovery  of  debts;  and  the  seventh  submitted  to 
commissioners  the  losses  alleged  to  have  been  incurred  by  British 
and  American  merchants  by  reason  of  the  illegal  captures  of  their 
vessels  and  property  by  Great  Britain  and  the  United  States  re- 
spectively. The  success  of  the  commission  under  the  seventh  article 
showed  the  feasibility  of  arbitration,  and  the  decisions  of  this  com- 
mission are  considered  classics  of  international  arbitration. 

In  the  hundred  years  following  Jay’s  treaty  many  and  important 


lO 


THE  STATUS  OF  THE 


cases  have  been  submitted  to  arbitration  by  nations  other  than  Great 
Britain  and  the  United  States.  Although  these  two  countries  are 
still  the  leaders,  as  they  were  the  beginners,  it  is  estimated  that 
there  have  been  some  two  hundred  submissions,  and  often  the  sub- 
mission as  in  the  case  of  the  Claims  Convention  of  1853,  between 
Great  Britain  and  the  United  States,  involved  many  cases.  From 
this  point  of  view  the  cases,  as  distinguished  from  the  agreements, 
have  been  numerous,  and  nations  have  had  ample  opportunity  of 
testing  arbitration. 

As  the  result  of  this  experience,  two  things  were  seen  to  be  nec- 
essary or  advisable:  the  one  a code  of  international  procedure,  and 
the  other  more  adequate  machinery  for  the  trial  and  determination 
of  the  cases.  Indeed,  it  may  be  said  that  the  wisdom  of  a third 
had  become  evident,  for  in  order  that  arbitration  may  bring  forth 
its  good  fruits  it  is  essential  that  nations  agree  by  a formal  instru- 
ment, or  in  a clause  of  a general  treaty,  to  submit  their  controversies 
to  arbitration.  The  agreement  to  refer  existing  differences  is  hard 
to  reach,  whereas  it  is  a comparatively  simple  matter  to  conclude  a 
treaty,  binding  the  contracting  parties  to  submit  future  disputes  to 
arbitration.  The  advantage  of  this  is  evident,  because  nations  are 
not  in  the  frame  of  mind  to  submit  disputes  which  perhaps  have 
ruffled  their  friendly  relations,  whereas  they  feel  bound  to  submit 
them  if  there  is  an  agreement  concluded  in  times  of  good  feeling 
which  requires  them  to  arbitrate  when  and  as  they  arise.  The 
special  treaty  or  clause  submitting  existing  disputes  has  been  sup- 
plemented by  the  general  treaty  or  the  general  clause,  binding  their 
good  faith  to  submit  their  disputes  generally  or  certain  categories 
of  them  to  arbitration.  This  innovation  is  due,  it  would  seem,  to 
William  Jay,  the  son  of  John  Jay,  and  his  successor  in  the  good 
work.  In  a tractate  published  in  1842,  entitled  “War  and  Peace: 
The  Evils  of  the  First  and  a Plan  for  Preserving  the  Last,”  Wil- 
liam Jay  urged  the  United  States  to  include  the  following  article 
in  its  treaties: 

“ It  is  agreed  between  the  contracting  parties  that  if,  unhappily, 
any  controversy  shall  hereafter  arise  between  them  in  respect  to 
the  true  meaning  and  intention  of  any  stipulation  in  this  present 
treaty,  or  in  respect  to  any  other  subject,  which  controversy  cannot 
be  satisfactorily  adjusted  by  negotiation,  neither  party  shall  resort 


INTERNATIONAL  COURT  OF  JUSTICE  ii 

to  hostilities  against  the  other;  but  the  matter  in  dispute  shall,  by 
a special  convention,  be  submitted  to  the  arbitrament  of  one  or  more 
friendly  powers;  and  the  parties  hereby  agree  to  abide  by  the  award 
which  may  be  given  in  pursuance  of  such  submission.” 

He  singled  out  France  because  no  rivalry  existed  between  it  and 
the  United  States,  and  he  foresaw  “ no  prospect  of  an  interruption 
of  that  harmony  which  has  so  long  marked  the  intercourse  of  the 
two  nations.”  If  he  had  the  harmlessness  of  the  dove,  he  likewise 
had  the  wisdom  of  the  serpent,  because  he  both  felt  and  knew  that 
it  would  be  easier  to  negotiate  such  a treaty  with  France  than  with 
any  other  nation,  and  he  foresaw  that  the  experience  with  one  na- 
tion would  inevitably  result  in  the  very  general  introduction  of  the 
proposed  article.  In  this  he  has  not  been  disappointed,  and  it  is  a 
matter  of  great  comfort  to  those  who  believe  that  the  ultimate  tri- 
umph should  be  traced  to  its  modest  source  to  note  that  the  first 
general  treaty  of  arbitration  concluded  by  the  United  States  was 
negotiated  in  1908  by  Mr.  Root,  worthy  in  every  way  of  the  Jays, 
with,  as  Mr.  Jay  suggested,  “ our  first  and  ancient  ally  ” — France. 

We  are  thus  to-day  surrounded,  as  it  were,  with  a network  of 
treaties  of  arbitration,  and  it  is  almost  as  true  of  the  son  as  it  was 
of  the  father  that  he  builded  better  than  he  knew. 

But  supposing  that  general  or  special  treaties  existed,  it  would 
be  of  inestimable  advantage  to  nations  in  controversy  to  have  for 
their  guidance  a code  of  arbitral  procedure  which  they  could  vary 
to  meet  the  special  needs  of  the  occasion  if  they  did  not  care  to 
adopt  it  and  to  apply  it  in  its  entirety.  And  it  is  not  the  least  service 
of  that  enlightened  body  of  publicists  composing  the  Institute  of 
International  Law  that  they  recognized  the  need  of  such  a code, 
foresaw  its  applicability,  and  drafted  its  provisions.  Within  a year 
after  its  organization,  in  1873,  the  Institute  prepared  a code  which, 
subsequently  amended,  served  as  the  basis  of  all  future  discussion, 
and  was  adopted  substantially  by  the  First  Hague  Conference. 

But  another  step  required  to  be  taken  to  facilitate  the  recourse 
to  arbitration.  The  Jay  Treaty  provided  for  the  appointment  of 
temporary  commissions  to  be  composed  of  commissioners  chosen 
by  the  two  governments,  and  subsequent  treaties  have  likewise  pro- 
vided for  temporary  commissions  or  tribunals  to  be  composed  of 
persons  chosen  by  the  two  governments  to  decide  the  matters  sub- 


12 


THE  STATUS  OF  THE 


mitted  to  them.  It  was  felt  that  it  would  be  a great  help  to  the  na- 
tions if  a general  agreement  were  reached  upon  the  constitution  of 
the  tribunals  and  if  the  names  of  appropriate  persons  were  called 
to  the  attention  of  the  nations  from  whom  the  desired  number 
could  be  chosen  to  form  the  tribunal.  The  Interparliamentary 
Union,  due  to  the  initiative  of  an  enlightened  Englishman,  the  late 
Sir  Randal  Cremer,  proposed  at  its  session  of  1894  at  The  Hague 
the  creation  of  a permanent  international  court,  and  a year  later  a 
definite  project  was  adopted  at  Brussels. 

Without  going  into  detail,  it  is  sufficient  to  state  that  the  court 
contemplated  by  the  Union  was  to  be  a large  and  permanent  body,  as 
each  nation  was  to  possess  the  right  to  appoint  two  arbiters,  al- 
though it  was  provided  that  two  or  more  nations  could  imite  and 
jointly  appoint  the  two  members  in  question.  They  were  to  serve 
for  a period  of  five  years  and  might  be  reappointed.  The  court 
was  to  sit  in  a particular  locality  to  be  agreed  upon;  its  members 
were  to  receive  salaries  by  the  states  appointing  them,  and  the  ex- 
penses of  the  court  as  such  were  to  be  paid  equally  by  the  states 
constituting  it. 

As  in  the  case  of  the  Code  of  Arbitral  Procedure,  so  in  the  case 
of  the  Permanent  Court  of  Arbitration,  it  is  evident  that  the  First 
Hague  Conference  found  material  at  hand  which  it  could  use  if  the 
delegates  were  minded  to  facilitate  the  recourse  to  arbitration,  and 
it  is  the  crowning  glory  of  the  Conference  that,  notwithstanding  the 
opposition  of  Germany,  it  was  so  minded,  and  that  it  made  a high 
use  of  the  projects  which  such  an  enlightened  body  as  the  Institute 
of  International  Law  and  such  an  influential  body  as  the  Interparlia- 
mentary Union  had  thought  out,  prepared  and  drafted. 

We  are  now  prepared  to  understand  the  action  of  the  First 
Hague  Conference  on  Arbitration,  Arbitral  Procedure,  and  the 
Court  of  Arbitration. 

In  the  month  of  August,  1898,  the  present  en- 
Sketch  of  lightened  Czar  of  Russia  invited  the  gdvernments 

the  Present  accredited  to  the  Court  of  St.  Petersburg  to  ap- 

Movement.  point  delegates  to  a conference;  and  the  powers 
having  consented,  a second  circular  was  issued  a 
few  months  later  in  the  nature  of  a program.  For  the  present 
purpose,  the  following  paragraph  may  be  quoted,  requesting  the 


INTERNATIONAL  COURT  OF  JUSTICE  13 

powers  in  conference  “ to  accept  in  principle  the  employment  of 
good  offices,  of  mediation  and  facultative  arbitration  in  cases  lend- 
ing themselves  thereto,  with  the  object  of  preventing  armed  con- 
flicts between  nations;  to  come  to  an  understanding  with  respect 
to  the  mode  of  applying  these  good  offices,  and  to  establish  a uni- 
form practice  in  using  them.” 

It  will  be  observed  that  while  arbitration  is  mentioned,  the  un- 
derstanding to  be  reached  related  to  good  offices.  The  Conference, 
however,  broadened  the  scope  of  this  article,  and  not  merely  ap- 
proved arbitration,  but  came  to  an  understanding  with  respect  to 
the  mode  of  applying  arbitration,  and  secured,  to  paraphrase  the 
article,  a uniform  practice  in  using  it.  The  American  delegation 
seems  to  have  been  the  only  one  instructed  by  a government  to 
propose  a court  of  arbitration.  It  appears,  however,  from  a very 
interesting  address  before  the  Judicial  Settlement  Society  in  1913, 
made  by  the  Hon.  David  Jayne  Hill,  formerly  Ambassador  to  Ger- 
many, and  at  the  time  of  the  First  Conference  Assistant  Secretary 
of  State  of  the  United  States,  that  the  proposal  for  the  court 
came,  not  from  the  United  States,  but  from  Sir  Julian  Pauncefote, 
British  Ambassador  to  the  United  States,  in  order  to  insure  the 
success  of  the  Conference,  which  at  that  time  was  problematical. 
As  it  is  evident,  however,  that  a court  of  arbitration  presupposed 
an  agreement  to  resort  to  arbitration,  and  that  the  resort  would 
be  facilitated  by  the  adoption  of  a code  of  procedure  for  the 
guidance  of  the  court  when  established,  the  Conference  took  action 
on  both  these  matters,  as  appears  from  the  following  articles  of 
the  Convention  for  the  Pacific  Settlement  of  International  Dis- 
putes : 

“ International  arbitration  has  for  its  object  the  settlement  of 
differences  between  states  by  judges  of  their  own  choice,  and  on 
the  basis  of  respect  for  law.”  (Article  15.) 

It  will  be  noted  that  this  is  a general  statement,  defining  the 
object  and  the  method,  but  not  necessarily  approving  arbitration. 
The  next  article,  however,  puts  the  stamp  of  approval  on  arbitra- 
tion ; 

“ In  questions  of  a legal  nature,  and  especially  in  the  interpre- 
tation or  application  of  International  Conventions,  arbitration  is 
recognized  by  the  Signatory  Powers  as  the  most  effective,  and  at 


14 


THE  STATUS  OF  THE 


the  same  time  the  most  equitable,  means  of  settling  disputes  which 
diplomacy  has  failed  to  settle.”  (Article  i6.) 

Direct  negotiation  is  here  regarded,  if  not  the  best,  neverthe- 
less as  the  first  means  of  settling  international  disputes,  and,  upon 
its  failure,  arbitration  is  stated  by  the  Conference  to  be  the  most 
effective  and  equitable  means  of  settling  a dispute  after  the  failure 
of  diplomacy.  It  will  be  observed  that  the  approval,  however,  is 
restricted  to  disputes  of  a legal  nature,  and  that  as  pre-eminently 
legal,  the  interpretation  and  application  of  international  conventions 
are  singled  out.  This  modest,  and  indeed  hesitating,  approbation 
of  a method  which  had  been  more  broadly  applied  during  the  past 
century  was  due  to  the  inability  of  the  Conference  to  agree  upon  a 
convention  binding  the  nations  to  resort  to  arbitration  in  a large 
number  of  specified  cases.  And  even  in  questions  of  a legal  nature, 
the  resort  was  to  be  voluntary.  That  there  might,  however,  be  no 
doubt  as  to  the  right  of  the  powers  to  bind  themselves  to  arbitration, 
the  Conference  stated  the  self-evident  in  the  following  language: 

“ Independently  of  general  or  private  treaties  expressly  stipulat- 
ing recourse  to  arbitration  as  obligatory  on  the  Signatory  Powers, 
these  powers  reserve  to  themselves  the  right  of  concluding,  either 
before  the  ratification  of  the  present  Act  or  later,  new  Agreements, 
general  or  private,  with  a view  to  extending  obligatory  arbitration 
to  all  cases  which  they  may  consider  it  possible  to  submit  to  it.” 

It  would  seem  that  the  reservation  of  the  right  was  unnecessary, 
as  sovereign  nations,  after  as  well  as  before  the  Conference,  pos- 
sessed the  right.  But  it  is  impossible  to  read  the  article  without 
perceiving  in  its  guarded  terms  a recommendation  that  such  agree- 
ments be  concluded;  and,  in  fact,  this  article,  useless  and  super- 
fluous as  it  may  seem  to  the  critical  reader,  has  nevertheless  been 
the  starting  point  of  the  new  movement  in  favor  of  treaties  of  arbi- 
tration. With  this  phase  of  the  subject,  however,  we  are  not  im- 
mediately concerned,  and  it  will  not  be  further  considered  except  to 
point  out  the  necessity  of  an  agreement  between  nations  either  by 
general  or  special  treaties  to  carry  a case  before  the  court  of  arbitra- 
tion. 

It  may  be  thought  that  the  Code  of  Arbitral  Procedure  applied 
by  the  court  would  properly  be  considered  after  the  agreement  upon 
the  court  had  been  reached.  But  this  is  believed  to  be  a narrow 


INTERNATIONAL  COURT  OF  JUSTICE  15 

view  of  the  case,  because  a code  could  be  drafted  by  the  Conference 
with  a recommendation  that  it  be  used  by  commissions  of  arbitra- 
tion whether  or  not  a code  had  been  devised  by  the  Conference, 
just  in  the  same  way  as  an  expression  in  favor  of  arbitration  does 
not  necessarily  depend  upon  the  creation  of  the  court.  But  how- 
ever this  may  be,  it  is  a fact  that  the  Conference  drafted  a code  of 
procedure  with  a view  “ to  encourage  the  development  of  arbitra- 
tion,” and  that  the  Signatory  Powers  agreed  upon  rules  to  be  ap- 
plicaWe  to  arbitral  procedure  unless  other  rules  were  agreed  upon 
by  the  parties.  (Article  30.) 

It  will  be  noted  that  the  code  is  in  the  nature  of  a recommenda- 
tion, leaving  the  powers  in  controversy  free  to  reject  its  provisions 
or  to  modify  them  according  to  their  pleasure.  It  is  a fact,  how- 
ever, that  the  recommendation  has  been,  in  practice,  tantamount  to 
an  agreement  to  apply  them,  and  that  the  modifications  have  been 
trivial.  This  is  another  way  of  saying  that  the  code  has  been  ex- 
ceedingly valuable  and  serviceable  to  the  nations  at  large.  As  a 
mixed  commission  or  a special  tribunal  of  the  so-called  Permanent 
Court  has  no  jurisdiction  except  that  which  is  conferred  upon  it  by 
the  parties  in  dispute,  it  follows  necessarily  that  an  agreement  must 
be  reached  upon  this  point.  The  instrument  to  do  this  is  technically 
called  the  compromis,  of  which  the  English  equivalent  is  “ special 
agreement  ” ; and  in  this,  to  quote  the  language  of  the  Convention, 
“ the  subject  of  the  difference  is  clearly  defined,  as  well  as  the  ex- 
tent of  the  arbitrators’  powers.” 

The  code  divides  what  may  be  called  the  pleadings  into  two 
parts : one  the  written  pleadings,  consisting  of  the  case,  the  counter- 
case, and  the  written  arguments;  the  other  the  oral  arguments  be- 
fore the  tribunal  in  session.  It  was  the  intention  of  the  Conference 
that  the  printed  pleadings  should  be  prepared  in  advance  and  served 
upon  the  arbitrators  before  the  trial,  so  that  they  might  familiarize 
themselves  with  the  case  in  all  its  details  before  the  oral  proceed- 
ings, which  consist  of  the  arguments  of  counsel  before  the  court. 
As  nations  are  artificial  persons,  they  can  only  appear  by  agent  and 
counsel,  and  therefore  agents  to  conduct  the  case  and  counsel  to 
argue  it  are  permitted.  Often  documents  considered  to  be  material 
to  the  right  understanding  and  decision  of  the  court  have  not  been 
furnished  to  the  court.  Therefore  it  is  provided  that  either  party 


i6 


THE  STATUS  OF  THE 


may  call  the  tribunal’s  attention  to  such  documents  and  request 
their  production,  or  that  the  arbitrators  themselves  may  request 
documents  which  they  regard  as  material.  Again,  testimony  is 
taken  in  national  courts  and  it  may  be  necessary  to  do  so  in  inter- 
national tribunals.  Therefore  a provision  is  made  for  the  testimony 
of  witnesses,  who,  however,  are  not  cross-examined  by  counsel,  as 
in  Anglo-American  practice,  but  questioned  by  the  judges,  accord- 
ing to  the  method  of  the  civil  law.  Finally,  a difficult  point  is 
often  cleared  up  and  doubts  removed  by  questions  from  the  bench. 
Therefore  the  judges  of  the  court  are  authorized  to  put  questions 
to  agents  or  counsel,  with  the  distinct  understanding,  however,  that 
such  questions  are  not  to  be  considered  as  expressing  the  views  of 
the  arbitrators.  When  the  argument  is  completed  and  the  oral  pro- 
ceedings finished,  the  judges  retire  to  consider  the  case  and  to  pre- 
pare their  award,  which  is  delivered  in  open  court,  in  the  presence 
of  agent  or  counsel,  or  in  their  absence,  if  they  have  been  duly  sum- 
moned to  appear.  The  opinion  thus  rendered  adjusts  the  case,  as 
the  compromis  or  special  agreement,  to  quote  the  language  of  the 
Convention,  “ implies  the  engagement  to  submit  loyally  to  the 
award.”  There  is,  unfortunately,  in  the  code  no  adequate  provision 
for  a rehearing,  although  the  right  may  be  reserved  in  the  com- 
promis or  special  agreement  “ to  demand  the  revision  of  the  award.” 
But,  unless  this  right  be  reserved,  the  revision  must  be  made  by  the 
tribunal  which  pronounces  the  award,  and  only  “ on  the  ground  of 
the  discovery  of  some  new  fact  calculated  to  exercise  a decisive  in- 
fluence on  the  award  and  which,  at  the  time  the  discussion  was 
closed,  was  unknown  to  the  tribunal  and  to  the  party  demanding 
the  revision.”  (Article  55.) 

Although  it  may  be  admitted  that  the  code  was  intended  pri- 
marily for  the  Court  of  Arbitration,  it  is  nevertheless  true  that, 
based  as  it  is  upon  the  experience  of  nations  with  arbitration,  it 
would  be  applicable  to  any  commission  or  temporary  tribunal,  and  it 
is  evident  that  a great  service  would  have  been  rendered  by  it  to 
arbitration  had  the  Permanent  Court  not  been  established. 

We  now  come  to  the  Permanent  Court  of  Arbitration.  It  will 
be  recalled  that  the  American  delegation  was  the  only  one  officially 
instructed  to  propose  such  an  institution,  although  it  has  been 
stated  that  the  suggestion  was  in  the  first  instance  due  to  Sir 


INTERNATIONAL  COURT  OF  JUSTICE  17 

Julian  Pauncefote,  at  that  time  British  Ambassador  at  Washington. 

It  is,  therefore,  eminently  proper  that  this  dis- 
The  So-Called  tinguished  statesman  and  diplomat  should  re- 
Permanent  Court  ceive  credit  for  the  proposal,  and  that  he  should 
of  Arbitration.  be  considered  in  a peculiar  and  personal  sense 
of  the  word  as  the  father  of  the  court,  even 
although  it  must  be  borne  in  mind  that  the  project  was  a favorite 
one  with  many  people  in  the  United  States,  and  that  there  existed 
in  this  country  a strong  sentiment  in  favor  of  its  creation. 

Without  considering  in  detail  the  various  proposals  made  at  the 
Conference,  it  will  be  sufficient  to  state  and  to  analyze  the  ultimate 
result,  so  as  to  make  clear  the  nature  of  the  institution,  the  role 
which  it  was  expected  to  play,  and  the  part  it  actually  does  play  in 
international  relations.  But  it  should  be  said  in  this  connection 
that  while  there  was  a very  general  feeling  in  favor  of  the  court  as 
proposed  by  Sir  Julian  Pauncefote,  the  opposition  of  the  German 
Government  at  one  time  threatened  its  creation.  The  reasons,  ap- 
parently, were  two-fold:  First,  that  Germany  had  not  had  suffi- 
cient experience  with  arbitration  to  conclude  a general  treaty ; and, 
second,  that  Germany  was  averse  to  the  establishment  of  a court 
which  presupposed  arbitration  treaties  and  which  in  the  nature  of 
things  was  likely  to  be  permanent.  The  scruples  of  Germany  were 
overcome,  in  so  far  as  the  court  was  concerned,  on  condition, 
however,  that  a general  treaty  of  arbitration  should  not  be 
negotiated. 

The  close  connection  between  arbitration  on  the  one  hand  and 
the  code  of  procedure  on  the  other  is  clearly  shown  in  the  intro- 
ductory article  of  the  section  of  the  Convention  for  the  Pacific  Set- 
tlement of  International  Disputes  devoted  to  the  Permanent  Court, 
which  reads  as  follows: 

“ With  the  object  of  facilitating  an  immediate  recourse  to  ar- 
bitration for  international  differences,  the  Signatory  Powers  under- 
take to  organize  a Permanent  Court  of  Arbitration,  accessible  at 
all  times  and  operating,  unless  otherwise  stipulated  by  the  parties, 
in  accordance  with  the  Rules  of  Procedure  inserted  in  the  present 
Convention.”  (Article  20.) 

The  court,  however,  is  one  without  specific  jurisdiction,  as  the 
attempt  failed  to  negotiate  a general  treaty  of  arbitration  binding 


i8 


THE  STATUS  OF  THE 


nations  to  submit  certain  classes  of  disputes.  It  is  also  a court 
without  judges,  although  a list  of  competent  persons  is  supplied 
from  which  the  nations  can  pick  and  choose  the  persons  desired  for 
the  temporary  or  special  tribunal.  The  court,  however,  is  declared 
to  be  competent  for  all  cases  of  arbitration,  reserving  to  the  nations 
the  right  to  create  another  and  different  tribunal.  It  was  to  be  lo- 
cated in  The  Hague,  and  an  Administrative  Council,  consisting  of 
the  representatives  of  the  Signatory  Powers  accredited  to  The 
Hague,  was  to  establish  the  court  and  an  international  bureau  in 
connection  with  it  to  act  as  the  clerk  of  the  court  and  to  be  under 
the  supervision  of  the  Council.  The  important  provisions  of  the 
Convention  are  those  relating  to  the  selection  of  the  panel  or  list 
of  judges,  and  the  formation  from  this  list  of  the  temporary  tri- 
bunal for  the  trial  and  disposition  of  a case.  Other  matters  will 
not  be  considered.  The  language  of  the  Convention  on  these  points 
will  be  quoted  without  entering  into  other  details  which,  although 
interesting,  are  irrelevant  to  the  matter  in  hand.  Let  us  first  con- 
sider the  list  or  panel  of  judges. 

In  Article  23  of  the  Convention  it  is  provided  that  “ each  Sig- 
natory Power  shall  select  four  persons  at  the  most,  of  known  com- 
petency in  questions  of  international  law,  of  the  highest  moral  repu- 
tation, and  disposed  to  accept  the  duties  of  arbitrators.”  It  is  pro- 
vided in  a subsequent  paragraph  of  the  same  article  that  “ two  or 
more  powers  may  agree  on  the  selection  in  common  of  one  or  more 
members.”  A list  is  made  of  the  persons  thus  selected  and  the  list 
or  panel,  as  well  as  any  alterations  in  it,  is  communicated  to  the 
Signatory  Powers.  The  arbitrators  are  appointed  for  a term  of 
six  years,  and  may  be  reappointed  for  a succeeding  period ; that  is 
to  say,  the  principle  of  equality  is  observed,  each  state  having  the 
privilege  of  appointing  for  a period  of  six  years  four  persons  fitted 
to  act  as  arbitrators  and  willing  to  act  if  appointed,  with  the  result 
that  if  each  of  the  26  states  represented  at  the  First  Conference 
avails  itself  of  the  right  or  privilege,  there  would  be  a body  of  104 
persons,  and  if  the  44  powers  represented  at  the  Second  Hague  Con- 
ference exercised  the  right,  a body  of  176. 

The  mere  statement  of  these  facts  without  argument  shows  that 
we  are  dealing  with  a list  or  panel,  or  at  most  with  a judicial  as- 
sembly, not  with  a court  in  the  strict  and  technical  sense  of  the 


INTERNATIONAL  COURT  OF  JUSTICE  19 

word.  The  Conference,  however,  was  pleased  to  consider  the  list 
or  body  as  a court,  and  gave  it  the  high-sounding  and  thoroughly 
inaccurate  name  of  the  “ Permanent  Court  of  Arbitration,”  instead 
of  the  more  modest  but  accurate  name  of  the  Permanent  List  or 
Panel  of  Arbitrators.  It  is  but  natural  that  delegates  should  seek 
to  magnify  their  work;  but  by  using  language  unjustified  by  the 
facts  of  the  case,  they  have  created  the  impression  that  a court 
exists  for  the  trial  of  cases ; that  this  court  is  permanent ; that  it  is 
“ accessible  at  all  times,”  whereas  in  fact  they  only  created  a list  or 
panel  of  arbiters  from  which  a temporary  tribunal  could  be  formed 
for  the  trial  of  a case  and  which,  like  a mixed  commission,  passed 
out  of  existence  when  the  award  was  rendered.  It  is  not  denied  that 
their  action  has  called  attention  to  arbitration  and  the  arbitral 
method  of  settlement,  and  given  it  a prestige  and  a dignity  which  it 
formerly  lacked,  and  that  the  “ hope  of  facilitating  an  immediate  re- 
course to  arbitration  for  international  differences  ” was  attained. 
It  is  believed,  however,  that  the  improper  use  of  the  terms  “ court  ” 
and  “ permanent  ” has  made  it  more  difficult  to  call  into  being  a 
court  in  the  technical  sense  of  the  word,  of  which  permanency  is 
an  essential  element.  Public  opinion  is  not  particular  about  details, 
and  rarely  looks  below  the  surface  of  things.  It  believes  that  a 
court  has  been  established,  and  argument  is  required  to  refute  the 
error  and  persuasion  to  have  it  declare  itself  in  favor  of  a truly 
permanent  court  to  be  constituted  alongside  of  the  so-called  Per- 
manent Court,  for  the  judicial  decision  of  legal  disputes.  It  is 
a fact,  however,  that  public  opinion  is  being  enlightened  and  that, 
largely  through  the  American  Society  for  Judicial  Settlement  of 
International  Disputes,  the  sentiment  in  the  United  States  in  behalf 
of  an  international  court  of  justice  has  been  strengthened  and 
created  in  countries  where  it  did  not  previously  exist. 

That  the  statement  is  correct  that  only  a list — not  a court — 
was  created  by  the  First  Conference  is  evident  by  Article  24  of  the 
Convention,  which  provides  for  the  formation  of  a temporary  or 
special  tribunal,  to  be  composed  of  a number  of  persons  selected 
by  the  powers  in  controversy  from  the  list  or  panel  for  the  adjust- 
ment of  the  dispute.  Much  confusion  exists  in  the  public  mind 
as  to  this,  and  it  is  within  the  personal  knowledge  of  the  writer  that 
delegates  to  the  Second  Hague  Conference  failed  adequately  to 


20 


THE  STATUS  OF  THE 


grasp  the  distinction  between  the  so-called  Permanent  Court  on 
the  one  hand  and  the  temporary  or  special  tribunal  on  the  other. 
On  this  very  important  point,  which  indeed  is  fundamental,  the 
Convention  says: 

“ When  the  Signatory  Powers  desire  to  have  recourse  to  the 
Permanent  Court  for  the  settlement  of  a difference  that  has  arisen 
between  them,  the  arbitrators  called  upon  to  form  the  competent 
tribunal  to  decide  this  difference  must  be  chosen  from  the  general 
list  of  members  of  the  court.”  (Article  24.) 

That  is  to  say,  notwithstanding  the  use  of  the  term  “ Permanent 
Court,”  the  tribunal  has  to  be  created  for  the  trial  of  each  particular 
case.  It  was  foreseen  that  the  nations  might  agree  upon  the  com- 
position of  the  Arbitral  Tribunal.  It  was  also  foreseen  that  they 
might  not  agree,  and  a method  was  provided  for  its  composition 
in  the  event  that  the  powers  either  did  not  or  were  unable  to  agree 
upon  its  personnel.  The  following  paragraphs  from  the  same 
article  define  the  method  to  be  used  in  the  latter  case : 

“ Failing  the  direct  agreement  of  the  parties  on  the  composi- 
tion of  the  Arbitration  Tribunal,  the  following  course  shall  be 
pursued : 

“ Each  party  appoints  two  arbitrators,  and  these  together  choose 
an  umpire. 

“If  the  votes  are  equal,  the  choice  of  the  umpire  is  intrusted 
to  a third  power,  selected  by  the  parties  by  common  accord. 

“If  an  agreement  is  not  arrived  at  on  this  subject,  each  party 
selects  a different  power,  and  the  choice  of  the  umpire  is  made  in 
concert  by  the  powers  thus  selected.” 

It  is  to  be  observed  that  the  special  tribunal  recommended  by 
the  First  Hague  Conference  contemplates  a body  of  five  judges, 
should  the  parties  not  otherwise  decide,  and  that  of  these  five  judges 
only  one  need  be  a stranger  to  the  dispute,  as  every  nation  was 
authorized  to  appoint  two  arbitrators  with  a presumption  in  favor 
of  citizens  or  subjects  of  their  respective  countries.  The  Second 
Peace  Conference,  of  1907,  greatly  improved  this  provision  by 
providing  that  only  two  of  the  arbiters  chosen  from  the  list  or 
panel  should  be  citizens  or  subjects  of  the  nations  in  controversy, 
and  added  a clause  rendering  it  morally  certain  that  an  umpire 


INTERNATIONAL  COURT  OF  JUSTICE  21 

could  be  selected,  which  might  not  have  happened  under  the  original 
convention. 

“ Each  party  appoints  two  arbitrators,  of  whom  one  only  can 
be  its  national,  or  chosen  from  among  the  persons  who  have  been 
selected  by  it  as  members  of  the  Permanent  Court.  These 
arbitrators  together  choose  an  umpire. 

“ If  the  votes  are  equally  divided,  the  choice  of  the  umpire 
is  intrusted  to  a third  power,  selected  by  the  parties  by  com- 
mon accord. 

“ If  an  agreement  is  not  arrived  at  on  this  subject  each  party 
selects  a different  power,  and  the  choice  of  the  umpire  is  made 
in  concert  by  the  powers  thus  selected. 

“ If,  within  two  months’  time,  these  two  powers  cannot  come 
to  an  agreement,  each  of  them  presents  two  candidates  taken  from 
the  list  of  members  of  the  Permanent  Court,  exclusive  of  the 
members  selected  by  the  parties  and  not  being  nationals  of  either 
of  them.  Drawing  lots  determines  which  of  the  candidates  thus 
presented  shall  be  umpire.” 

(Convention  for  the  Pacific  Settlement  of  International 
Disputes  of  1907,  Article  45.) 

It  is  evident,  however,  that  we  do  not  have  a permanent  court 
either  by  the  original  or  revised  Convention.  We  have  at  most 
machinery  for  the  creation  of  a temporary  tribunal,  and  while  it  is 
admitted  that  the  machinery  created  does  as  a matter  of  fact 
facilitate  the  recourse  to  arbitration,  it  does  not  remove  the  greatest 
difficulty  in  resorting  to  it:  namely,  the  composition  of  a special 
tribunal  at  the  very  time  when  the  parties  are  not  in  the  frame  of 
mind  to  form  such  a tribunal.  Without  seeking  to  minimize  the 
importance  of  either  Conference,  the  writer  of  this  article  believes 
that,  were  it  not  for  the  prestige  of  a Hague  Convention,  the 
situation  after  the  First  Conference  would  have  been  much  the 
same  as  it  was  before : namely,  that  nations  might  agree  to  general 
or  specific  treaties  of  arbitration;  that  they  might  constitute  tem- 
porary tribunals  for  the  settlement  of  disputes,  and  that  they  might 
use,  as  they  undoubtedly  would,  the  procedure  in  the  form  it 
had  assumed  during  the  century  which  has  elapsed  since  the  Jay 
Treaty. 

A dozen  tribunals  have  been  formed  for  the  trial  of  cases  at 


22 


THE  STATUS  OF  THE 


The  Hague,  and  it  is  believed  that  the  members  of  these  tribunals 
would  have  been  much  the  same  had  the  permanent  list  or  panel  not 
existed.  For  nations  have  had  a weakness  for  their  subjects  or 
citizens,  and  they  have,  wisely  it  is  believed,  confined  their  choice 
to  jurists  who  derive  little  or  no  prestige  from  being  members 
of  the  permanent  list  or  panel,  but  who  rather  reflect  distinction 
upon  it,  and  who  would  have  been  chosen  in  most  cases  if  the  list 
or  panel  had  not  existed.  This  statement  is  borne  out  by  an  ex- 
amination of  the  countries  from  which  judges  have  been  chosen, 
and  by  the  standing  and  distinction  of  the  judges  themselves. 
Thus,  a well-informed  writer  says  in  a recent  article : 

“ In  the  space  of  about  ten  years  the  Permanent  Court  of  Arbi- 
tration settled  twelve  disputes.  France  was  a party  to  six  of  these: 
America  and  England,  to  five ; Italy  and  Germany,  to  three ; Russia 
and  Mexico,  Venezuela,  Sweden  and  Norway,  each  to  two;  Spain, 
Belgium,  Holland,  Turkey  and  Peru,  each  to  one.  In  five  of  the 
cases  Dutch  jurists — Asser,  de  Savornin  Lohman  and  Loeff — acted 
as  judges,  and  in  the  first  two  Dutchmen  sat  at  the  same  time;  Swe- 
dish and  Norwegian  arbitrators — Professor  Hammarskjdld  and 
Minister  Gram — sat  in  five  of  these  disputes.  France  also  was  rep- 
resented five  times  in  the  arbitration  court.  Professor  Renault  being 
chosen  each  time.  Professor  Lammasch,  of  Austria,  who  was 
chosen  judge  four  times,  has  also  rendered  very  good  services; 
England  was  represented  twice  by  Sir  Edward  Fry,  once  by  Sir 
Charles  Fitzpatrick,  and  once  by  Lord  Desart;  Russia  twice 
by  Professor  de  Martens,  twice  by  Baron  Taube,  and  once 
by  Mandelstam,  while  Fusinato  represented  Italy  in  three  of 
the  arbitration  courts.  The  prominent  place  that  Holland  occupies 
with  Sweden  in  this  list  is  the  more  remarkable,  if  it  is  borne  in 
mind  that  it  has  never  submitted  a case  to  the  Permanent  Court,  and 
thus  has  never  appointed  a judge.” 

It  should  be  said,  however,  that  the  action 
Effect  of  of  the  Hague  Conference  in  recognizing  arbi- 

Hague  Conference  tration  and  creating  machinery  to  resort  to 
on  Arbitration.  has  called  it  to  the  attention  of  the  world 

in  a way  which  would  not  otherwise  have 
been  possible,  and  that,  however  imperfect  the  machinery  may  be, 
the  action  of  the  Conferences  has  given  a greater  impetus  to  arbi- 


INTERNATIONAL  COURT  OF  JUSTICE 


23 


Distinction  Between 
Arbitration  and 
Judicial  Settlement 
Fundamental. 


tration  than  any  act  of  recorded  history.  It  is,  nevertheless,  child- 
ish to  regard  the  work  of  the  Conference  as  perfect  or  final,  and 
to  resent  any  and  every  amendment  because  it  seems  to  question 
the  efficiency  or  finality  of  the  conventions  of  the  two  Confer- 
ences. Those  who  propose  amendments  to  render  the  machinery 
more  effective  in  the  future  than  in  the  past  are,  it  is  believed,  the 
true  friends  of  progress  and,  therefore,  of  the  Conferences.  Tak- 
ing their  work  as  a starting-point  and  modifying  and  developing 
it  to  meet  the  changing  needs  of  nations  would  tend  to  make  the 
Conference  a living  and  a vital  force  for  the  future  rather  than 
considering  their  work  as  done  and  final.  For  by  so  doing  we 
minimize  their  importance  as  international  agencies  and  we  con- 
fine within  narrow  limits  the  scope  of  their  activities. 

If,  however,  we  consider  the  institution 
created  by  the  First  Conference  and  modi- 
fied in  certain  important  details  by  the  Sec- 
ond as  in  reality  a court,  it  is  nevertheless, 
according  to  its  name,  a court  of  arbitra- 
tion. And  if  we  suppose  that  it  ade- 
quately meets  the  needs  of  arbitration,  the  question  arises  whether 
or  not  arbitration  as  understood  and  practised  is  the  ultimate  goal 
toward  which  we  tend,  or  whether  arbitration  is  but  a step  toward 
judicial  settlement.  But  before  discussing  this  interesting  question, 
we  should  determine  whether  arbitration  and  judicial  settlement 
are  synonymous,  or  whether  in  fact,  if  not  in  theory,  they  differ 
in  essential  particulars.  For  if  arbitration  and  judicial  settlement 
be  identical,  it  necessarily  follows  that  a movement  in  favor  of 
judicial  settlement  as  distinguished  from  arbitration  is  without  rea- 
son; whereas  if  the  two  methods  differ,  arbitration  may  be  pre- 
ferred in  some  cases  and  judicial  settlement  in  others,  so  that  these 
methods  of  peaceful  settlement  will  co-exist  and  mutually  aid  one 
another,  or  arbitration  may  merge  in  judicial  settlement.  The 
writer  believes  that  in  fact,  if  not  in  theory,  these  two  systems 
differ,  not  merely  in  form,  but  in  substance ; that  certain  classes  of 
disputes  should  be  and  can  only  be  decided  by  judicial  process;  that 
the  failure  to  recognize  the  distinction  and  to  provide  machinery 
for  its  exercise  retards  the  movement  in  favor  of  international 
peace.  He  admits,  however,  that  certain  questions  can  be  better  ad- 


24 


THE  STATUS  OF  THE 


justed  by  arbitration  than  decided  by  courts  of  justice,  and  that 
there  is,  therefore,  every  prospect  that  arbitration  would  still  be 
resorted  to,  even  although  an  international  court  of  justice  were 
created  for  the  decision  of  cases  by  judicial  process. 

The  object  of  international  arbitration  is  declared  to  be  “ the 
settlement  of  differences  between  states  by  judges  of  their  own 
choice,  and  on  the  basis  of  respect  for  law.”  The  object  of  judicial 
decision,  on  the  contrary,  is  the  decision  of  differences  by  judges, 
not  necessarily  chosen  by  the  parties  in  controversy,  by  an  applica- 
tion of  principles  of  law,  not  on  the  basis  of  respect  for  law. 

The  difference  between  the  purposes  of  each  is  believed  to  be 
fundamental,  and  a failure  to  grasp  the  difference  leads  to  errone- 
ous and  unjustifiable  conclusions.  Arbiters  of  the  parties’  own 
choice  are  not  necessarily  impartial,  and,  if  they  were  not  sup- 
posed to  be  friendly  to  the  litigants,  or  at  least  open  to  argument 
by  them,  they  would  not  be  chosen.  Judges  are  not  selected  by 
the  parties  and,  being  strangers  to  the  dispute,  are  presumed  to  be 
impartial,  for  there  is  no  necessary  relation  between  their  choice 
and  their  decision.  They  do  not  owe  their  appointment  to  the  liti- 
gants, and  they  neither  do  nor  can  receive  reward  from  them. 
The  umpire,  it  may  be  admitted,  is  an  indifferent  person,  but  he 
is  not  independent.  He  is  subject  to  the  argument  and  influence  of 
his  national,  and  therefore  biased,  associates,  and  his  future  selec- 
tion as  umpire  depends  upon  the  satisfaction  which  he  may  have 
given  to  the  litigants  in  a particular  case.  The  revised  method  of 
selecting  the  tribunal,  devised  by  the  Second  Hague  Conference, 
secures  or  may  secure  three  indifferent  persons  instead  of  one,  and 
it  may  thus  be  said  that  the  adjustment  of  the  case  is  reached  by 
a tribunal  composed  of  a majority  of  indifferent  persons.  But  this 
distinction  is  more  specious  than  real,  because  after,  as  before  the 
Conference  the  parties  compose  the  tribunal  according  to  their  pleas- 
ure, and  if  they  adopt  the  method  proposed  by  the  Second  Con- 
ference and  select  the  arbitrators  from  the  permanent  list  or  panel, 
they  may  choose  one  citizen  or  subject,  and  another  person  who, 
although  a foreigner,  nevertheless  may  be  considered  as  friendly  to 
the  contention;  otherwise  he  would  not  be  chosen.  We,  therefore, 
have  two  citizens  or  biased  subjects,  two  friends,  and  an  indifferent 
umpire,  whose  future  choice  as  umpire,  or  indeed  as  arbitrator  in  a 


INTERNATIONAL  COURT  OF  JUSTICE  25 

different  case,  depends  upon  the  satisfaction  which  he  has  given  to 
one  or  the  other  of  the  contending  parties.  It  needs  no  argument  to 
show  that  judges  are  not  exposed  to  such  criticism. 

In  the  next  place,  it  is  believed  that  a settlement  “ on  the  basis 
of  respect  for  law  ” may  be  an  adjustment  or  a judicial  decision,  ac- 
cording to  the  amount  of  respect  which  the  arbiters  may  be  pleased 
to  give  to  law.  It  is  not  necessarily  a judicial  decision,  as  in  the 
case  of  judges  bound  to  administer  and  to  apply  law.  It  makes  no 
difference  whether  the  judge  respects  law  or  has  no  liking  for  it; 
if  it  exists,  he  applies  it.  His  action  is  impersonal;  or,  to  use  a 
continental  expression,  his  action  is  objective — ^not  subjective — for 
the  personal  element  has  been  eliminated.  The  element  of  uncer- 
tainty, therefore,  exists  in  arbitration,  which  is  excluded  in  judicial 
decision,  although  judges,  as  human  beings,  may  be  mistaken  either 
as  to  the  existence  of  a principle  of  law  or  as  to  its  application.  So 
may  arbiters  if  they  sit  and  act  as  judges;  but  the  mistake  of  the 
judge  may  be  corrected  on  appeal,  whereas  an  appeal  is  inconsistent 
with  the  object  of  arbitration,  which  contemplates  “ a settlement  ” 
of  the  controversy  and  an  appeal  is  contrary  to  the  express  wording 
of  the  convention,  which,  according  to  Article  18,  “ implies  the 
engagement  to  submit  loyally  to  the  award.” 

But  there  is,  it  is  believed,  another  point  of  view  from  which 
the  subject  may  be  approached,  which  leads  inevitably  to  the  same 
conclusion.  Arbitration  is,  by  Article  20,  to  settle  differences 
“ which  it  has  not  been  possible  to  settle  by  diplomacy  ” ; that  is  to 
say,  arbitration  springs  out  of  diplomacy,  or  takes  up  the  question 
where  diplomacy  has  left  it,  and  it  is  feared  that  the  spirit  of  com- 
promise inherent  in  diplomatic  adjustments  is  carried  over  into  ar- 
bitral procedure  and  finds  no  inconspicuous  place  in  the  award.  In- 
deed, in  the  one  country,  Switzerland,  which  for  centuries  settled 
disputes  between  its  cantons  by  arbitration  the  arbiters  chosen  by 
the  parties  acted  as  mediators  and  offered  a settlement  or  an  ad- 
justment which,  if  accepted,  settled  the  dispute.  Upon  its  rejec- 
tion, they  took  up  the  cause  anew,  and,  to  use  the  language  of  the 
Hague  Conference,  adjusted  it  “ on  the  basis  of  respect  for  law.” 
It  is  very  difficult  for  one  man  to  have  two  functions,  and  to  draw 
a clean-cut  line  of  distinction  between  their  exercise.  The  execu- 
tive, the  legislative,  and  the  judicial  powers  are  separated  in  constitu- 


26 


THE  STATUS  OF  THE 


tional  countries,  and  it  is  believed  that  the  experience  of  nations 
should  not  be  lost  upon  arbitrators.  It  should  be  clearly  known 
that  they  act  either  as  diplomats  and  reach  a compromise,  as  is 
proper  in  case  of  diplomatic  adjustment,  or  that  they  are  judges 
and  reach  a judicial  decision,  as  becomes  judges.  Until  this  is 
done,  uncertainty  exists,  and  uncertainty,  it  is  submitted,  either  will 
or  should  prevent  a resort  to  that  form  of  procedure  from  which 
it  is  not  excluded.  Competent  critics  have  examined  the  awards 
of  the  Hague  tribunals  and  have  pointed  out  the  presence  of  com- 
promise as  distinguished  from  judicial  decision,  and  their  criticism 
is  the  more  damaging  as  they  are  believed  to  be  partisans  of  arbi- 
tration rather  than  outspoken  advocates  of  judicial  decision.  It  is 
reported  by  the  faithful  Boswell  that  Lord  Mansfield  once  advised 
Dr.  Johnson  to  believe  one-half  of  what  a certain  person  said,  to 
which  Dr.  Johnson  replied : “ Ay,  but  we  don’t  know  which  half 
to  believe.”  Where  compromise  is  possible  and  found  to  exist,  we 
naturally,  like  Dr.  Johnson,  question  the  entire  award. 

Now,  if  it  be  said  that  judicial  decision  is  open  to  the  charge 
of  uncertainty,  we  may,  as  is  the  custom  with  lawyers,  confess  and 
avoid.  That  is  to  say,  we  may  confess  that  neither  the  litigants 
nor  the  lawyers  can  predict  with  certainty  the  outcome  of  the  case 
any  more  than  the  same  persons  could  predict  the  arbitral  award, 
but  we  avoid  the  consequences  of  the  admission  in  the  case  of  judi- 
cial decision  by  stating  that  if  we  cannot  absolutely  forecast  the 
judgment,  we  can,  nevertheless,  predict  it  within  certain  clearly  de- 
fined limits.  For  instance,  if  the  plaintiff  insists  upon  the  existence 
of  a certain  fact  or  of  a principle  of  law  as  decisive  of  his  case, 
and  if  the  defendant  denies  the  existence  of  the  fact  or  the  prin- 
ciple of  law  which  governs  it,  and  suggests  a different  principle  of 
law  as  applicable,  it  is  evident  that  finding  the  fact  to  exist  or  not 
to  exist,  or  the  non-existence  or  the  non-applicability  of  the  prin- 
ciple of  law  decides  the  case.  The  client  and  the  lawyer  may  thus 
predict  in  the  alternative  the  inevitable  results. 

This  is  not  the  case  with  diplomats  who  frankly  compromise. 
It  is  not  the  case  with  arbiters  who  may  compromise.  It  is  the  case 
with  judges  who  must  find  the  fact,  declare  the  fact  to  be  as  it  is 
found,  and  who  must  apply  the  principle  of  law  contended  for  by 
plaintiff  or  defendant,  if  such  principle  of  law  exist.  In  the  case 


INTERNATIONAL  COURT  OF  JUSTICE  27 

of  diplomats,  the  governments  control  their  action,  for  they  are  the 
agents  of  their  own  choice  and  the  governments  determine  with  a 
fullness  of  knowledge  what  they  are  willing  or  unwilling  to  compro- 
mise. In  case  of  arbiters,  nations  cannot  directly  control  the  award, 
although  they  may  have  taken  every  precaution  to  choose  persons 
favorable  to  their  respective  contentions ; for,  although  the  arbiters 
are  appointed  by  them,  they  are  not,  as  diplomatic  agents,  subjected 
to  their  direct  control.  The  compromise  cannot  be  foreseen,  if  it 
is  to  be  a compromise,  and  they  cannot  determine  in  advance 
whether  the  award  will  be  acceptable,  although  they  have  bound 
themselves  “ to  submit  loyally  to  the  award,”  to  quote  the  exact 
language  of  the  convention. 

If,  therefore,  the  feeling  becomes  prevalent,  as  it  promises  to 
become,  that  arbitration  is  either  a thing  of  compromise  or  may  be 
such,  according  to  the  arbiters’  respect  for  law,  it  would  seem  to 
follow  that  nations  would  prefer  agents  whom  they  can  control 
rather  than  arbiters  whose  award  may  be  a compromise  which  they 
would  not  have  authorized  in  advance.  Nevertheless,  they  may  be 
willing  to  submit  their  legal  questions  to  judicial  decision,  because 
they  can  predict  the  outcome  in  the  alternative,  knowing  what  they 
may  expect  and  making  in  advance  the  arrangements  necessary  to 
comply  with  the  judgment.  There  will,  however — at  least  the  pres- 
ent writer  so  believes — -always  be  large  issues  of  a more  or  less  po- 
litical nature,  which  nations  can  only  expect  to  have  settled  on  the 
principle  of  give  and  take,  and  when  direct  negotiations  have  failed, 
they  may  properly  resort  and,  indeed,  be  willing  to  resort  to  com- 
promisers of  their  own  choice,  because  in  the  larger  point  of  view 
it  is  better  to  have  these  controversies  out  of  the  way,  even  although 
certain  contentions  be  renounced,  than  to  have  them  embitter  their 
foreign  relations,  as  they  will  assuredly  do  unless  settled.  But  just 
as  large  oaks  from  little  acorns  grow,  so  great  questions  of  policy 
which  are  mere  matters  of  law  in  the  beginning  become  by  delay 
and  mismanagement  political  questions  upon  which  nations  are  will- 
ing to  stake  their  existence  and  the  lives  of  their  inhabitants.  If, 
however,  a permanent  court  of  justice  existed,  to  which  these  legal 
matters  could  be  referred  automatically  when  and  as  they  arise,  and 
before  the  nations  have  taken  position  upon  them  and  public  opinion 
has  expressed  itself,  they  might  be  got  out  of  the  way  so  quietly  as 


28 


THE  STATUS  OF  THE 


to  pass  unnoticed  except  to  the  foreign  offices  which  rejoice  at  their 
settlement,  and  the  experts  in  international  law  whose  business  it 
is  to  study  such  matters. 

It  is  not  because  the  partisans  of  judicial 
decision  believe  the  decision  of  a court  will 
settle  all  questions,  or  that  it  is  fitted  to  de- 
cide political  questions,  that  they  advocate  its 
establishment.  They  know  by  experience 
that  courts  of  law  only  pass  upon  legal  ques- 
tions, and  that  the  thousand  and  one  ques- 
tions of  policy  which  trouble  and  perplex  men  of  affairs  neither 
find  their  way  into  court  nor  are  fitted  for  judicial  decision.  How- 
ever large  the  jurisdiction  of  a court  may  be,  it  is  nevertheless  a 
limited  jurisdiction  and  does  not  include  questions  of  policy  or  of 
preference.  And  the  partisans  of  judicial  settlement  believe  that  an 
international  court  of  justice  will,  in  the  nature  of  things,  if  es- 
tablished, be  a court  of  limited  jurisdiction.  They  feel,  however, 
that  a judicial  tribunal  will  be  an  additional  guaranty  of  peace 
between  nations,  and  that  without  supplanting  any  agency,  it  will  do 
either  what  other  agencies  cannot  do,  or  do  but  imperfectly.  Their 
hope  is  to  enlarge  and  yet  confine  the  peace  movement  by  basing  it 
upon  the  solid  foundation  of  law  and  justice,  and  by  providing 
adequate  agencies  for  their  application.  They  believe  that  there  is 
a fundamental  distinction  between  the  nature  and  the  result  of  arbi- 
tration on  the  one  hand  and  the  nature  and  the  result  of  judicial 
decision  on  the  other,  and  impressed  by  this  distinction  and  its  im- 
portance, they  have  advocated  and  still  do  advocate  the  introduc- 
tion of  judicial  procedure  into  the  practice  of  nations  and  the  crea- 
tion of  a permanent  tribunal  composed  of  judges  by  profession, 
acting  according  to  judicial  standards.  Fortunately,  this  concep- 
tion of  what  the  writer  ventures  to  call  the  new  order  of  things 
found  a spokesman  in  the  person  of  Mr.  Elihu  Root,  who,  as 
Secretary  of  State,  instructed  the  American  delegates  to  the  Second 
Conference  to  propose  such  a tribunal.  The  passage  of  his  instruc- 
tions is  so  short  and  to  the  point  that  it  is  equally  difficult  to  abridge 
or  to  add  to  it.  Like  the  acorn,  it  has  the  giant  oak  within.  It 
is,  therefore,  quoted  in  full : 

“ The  method  in  which  arbitration  can  be  made  more  effective. 


An  International 
Court  of  Justice 
a Necessary 
Complement 
to  Arbitration. 


INTERNATIONAL  COURT  OF  JUSTICE  29 

so  that  nations  may  be  more  ready  to  have  recourse  to  it  volun- 
tarily and  to  enter  into  treaties  by  which  they  bind  themselves  to 
submit  to  it,  is  indicated  by  observation  of  the  weakness  of  the 
system  now  apparent.  There  can  be  no  doubt  that  the  principal 
objection  to  arbitration  rests  not  upon  the  unwillingness  of  nations 
to  submit  their  controversies  to  impartial  arbitration,  but  upon  an 
apprehension  that  the  arbitrations  to  which  they  submit  may  not  be 
impartial. 

“ It  has  been  a very  general  practice  for  arbitrators  to  act,  not 
as  judges  deciding  questions  of  fact  and  law  upon  the  record  before 
them  under  a sense  of  judicial  responsibility,  but  as  negotiators 
affecting  settlements  of  the  questions  brought  before  them  in  ac- 
cordance with  the  traditions  and  usages  and  subject  to  all  the  con- 
siderations and  influences  which  affect  diplomatic  agents.  The  two 
methods  are  radically  different,  proceed  upon  different  standards 
of  honorable  obligation,  and  frequently  lead  to  widely  differing 
results.  It  very  frequently  happens  that  a nation  which  would  be 
very  willing  to  submit  its  differences  to  an  impartial  judicial  de- 
termination is  unwilling  to  subject  them  to  this  kind  of  diplomatic 
process. 

“If  there  could  be  a tribunal  which  would  pass  upon  questions 
between  nations  with  the  same  impartial  and  impersonal  judgment 
that  the  Supreme  Court  of  the  United  States  gives  to  questions 
arising  between  citizens  of  the  different  states,  or  between  foreign 
citizens  and  the  citizens  of  the  United  States,  there  can  be  no  doubt 
that  nations  would  be  much  more  ready  to  submit  their  contro- 
versies to  its  decision  than  they  are  now  to  take  the  chances  of 
arbitration. 

“ It  should  be  your  effort  to  bring  about  in  the  Second  Con- 
ference a development  of  the  Hague  Tribunal  into  a permanent 
tribunal  composed  of  judges  who  are  judicial  officers  and  nothing 
else,  who  are  paid  adequate  salaries,  who  have  no  other  occupation, 
and  who  will  devote  their  entire  time  to  the  trial  and  decision  of 
international  causes  by  judicial  methods  and  under  a sense  of  ju- 
dicial responsibility.  These  judges  should  be  so  selected  from  the 
different  countries  that  the  different  systems  of  law  and  procedure 
and  the  principal  languages  shall  be  fairly  represented.  The  court 
should  be  made  of  such  dignity,  consideration  and  rank  that  the 


30 


THE  STATUS  OF  THE 


best  and  ablest  jurists  will  accept  appointment  to  it,  and  that  the 
whole  world  will  have  absolute  confidence  in  its  judgments.” 

Accordingly,  acting  under  these  instructions,  the  American  del- 
egation submitted  a project  (printed  in  the  appendix)  for  the  es- 
tablishment of  a court  in  the  sense  in  which  that  term  is  used  by 
jurists. 

The  project  is  stated  in  general  terms  and 
The  Project  ^^s  only  intended  to  serve  as  a basis  of  dis- 

of  the  American  cussion,  not  to  be  adopted  in  the  form  sub- 

Delegates.  mitted.  It  contemplated  a court  to  be  com- 

posed of  fifteen  judges  without  determining 
the  manner  of  their  appointment,  but  provided  that  the  different 
countries  and  the  systems  of  law  and  procedure,  as  well  as  the  prin- 
cipal languages,  should  be  represented;  that  the  court  should  meet 
annually  at  The  Hague  and  should  remain  in  session  until  the  busi- 
ness before  it  was  transacted;  that  as  a court  it  should  draw  up 
its  regulations;  that  as  a court,  national  judges  should  be  excluded, 
except  upon  the  express  consent  of  the  parties ; that  without  original 
jurisdiction,  it  should  be  competent  to  decide  all  differences  of  an 
international  character  between  nations  which  diplomacy  had  failed 
to  settle  and  which  the  parties  in  controversy  agreed  to  submit  to 
the  court ; that  it  should  serve  as  a court  of  appeal  for  the  findings, 
decisions,  awards  of  commissions  of  inquiry,  and  all  special  tribu- 
nals of  arbitration  which  might  be  submitted  by  the  respective 
parties  thereto  ; and  that  the  judges  of  the  proposed  court  should 
be  competent  to  act  as  members  of  commissions  of  inquiry  or  as 
special  tribunals,  should  the  nations  desire  them  so  to  act.  It 
should  be  noted  also  that  the  proposed  court  was  not  intended  to 
replace  the  so-called  permanent  court,  for  by  Article  6 it  was  ex- 
pressly stated  that  this  latter  institution  “ might,  as  far  as  possible, 
constitute  the  basis  ” of  the  proposed  court,  with  the  distinct  pro- 
viso, however,  that  the  nations  excluded  from  the  First  Conference, 
but  which  participated  in  the  Second,  should  be  represented  in  it. 
The  difference  between  the  actual  so-called  Permanent  Court  of 
Arbitration  and  the  projected  court  is,  it  is  believed,  the  difference 
between  a mixed  commission  and  a technical  court,  and  the  de- 
termination of  the  advocates  of  the  latter  to  regularize  and  to  in- 
ternationalize the  practice  of  nations  is  evident  from  the  fact  that 


INTERNATIONAL  COURT  OF  JUSTICE  31 

the  court  was  to  sit  as  a court  of  appeal  for  review  or  revision  of 
decisions  of  an  international  nature,  no  matter  by  what  agency  they 
might  have  been  rendered.  The  American  delegation  drafted  and 
was  prepared  to  lay  before  the  Conference  a project  of  nineteen 
articles,  giving  effect  to  Mr.  Root’s  instructions,  based  upon  the  brief 
statement  of  the  elements  which  should  enter  into  the  constitution 
and  operation  of  such  a court,  as  outlined  in  the  project  previously 
submitted,  which  has  been  sufficiently  analyzed  for  present  purposes. 

The  desire  of  Germany  and  Great  Britain  to  pre- 
Germany  and  sent  a joint  project  caused  the  American  delega- 
Great  Britain,  tion  to  withhold  its  original  draft,  which,  however, 
is  printed  in  the  appendix  in  order  to  enable  the 
reader  the  better  to  comprehend  the  proposal  of  the  three  countries, 
loyally  supported  by  France,  although  it  was  not  technically  a 
party.  After  weeks  of  discussion,  a project  of  thirty-five  articles 
was  approved  by  the  Conference,  voted  by  it  on  October  16,  1907, 
although  it  is  imperfect  in  the  sense  that  it  does  not  prescribe  the 
method  by  which  the  judges  were  to  be  appointed.  This  was  not 
merely  a difficulty;  it  was  fatal  to  the  establishment  of  the  court, 
because  a court  without  judges  is  inoperative,  if  not  unthinkable. 
But  the  matter  did  not  rest  here,  for,  as  has  been  stated,  the  Con- 
ference adopted  the  project  and  recommended  that  the  tribunal  be 
established  when  the  nations  should  agree  upon  a method  of  ap- 
pointing the  judges.  The  labor,  therefore,  was  not  in  vain.  It  is 
competent  for  any  number  of  nations  to  install  the  court  for  them- 
selves, and  if  this  be  done  we  shall  have  a court  of  justice  between 
nations  just  as  we  have  a supreme  judicial  tribunal  in  every  State 
that  makes  a pretense  to  civilization. 

What  are  the  main  features  of  the  proposed 
permanent  court  of  justice?  It  is  believed  that 
the  official  account  of  the  court  as  contained  in 
the  official  report  of  the  American  delegation  to 
the  Secretary  of  State  should  properly  be 
quoted,  as  it  shows  the  sense  in  which  it  was 
understood  and  interpreted  by  the  delegation, 
and  it  is  the  court  as  interpreted  and  explained  by  the  delegation 
which  the  United  States  has  tried  through  diplomatic  channels  to 
establish. 


The  Main 
Features  of  the 
Proposed 
International 
Court. 


32 


THE  STATUS  OF  THE 


“ ‘ The  Conference  recommends  to  the  Signatory  Powers  the 
adoption  of  the  project  hereunto  annexed,  of  a convention  for  the 
establishment  of  a court  of  arbitral  justice  and  its  putting  in  effect 
as  soon  as  an  accord  shall  be  reached  upon  the  choice  of  the  judges 
and  the  constitution  of  the  court.’  ” 

“ An  analysis  of  this  paragraph  shows  that  the  establishment  of 
the  court  is  not  the  expression  of  a mere  wish  or  desire  on  the  part 
of  the  Conference,  but  that  it  is  a recommendation  to  the  powers  to 
undertake  the  establishment  of  the  court.  In  the  next  place,  the  pro- 
ject of  convention  annexed  to  the  recommendation  is  not  to  be  sub- 
mitted as  a plan  or  as  a model,  but  for  adoption  as  the  organic  act 
of  the  court.  Again,  the  convention  annexed  and  made  a part  of 
the  recommendation  goes  forth  not  only  with  the  approval  of  the 
Conference  but  as  a solemn  act  adopted  by  it.  And,  finally,  ac- 
cepting the  convention  as  the  organic  act,  the  Conference  recom- 
mends that  the  court  be  definitely  and  permanently  established  by 
the  powers  as  soon  as  they  shall  have  agreed  upon  a method  of  ap- 
pointing the  judges,  who,  when  appointed,  thus  c.onstitute  the  court. 
It  will  be  noted  that  the  number  of  powers  necessary  to  establish 
the  court  is  not  stated,  nor  is  the  number  of  judges  determined.  It 
follows,  therefore,  that  the  powers  wishing  to  establish  the  court 
are  free  to  adopt  the  project  of  convention,  agree  upon  the  method 
of  choosing  the  judges,  and  establish  the  court  at  The  Hague  for 
the  trial  of  cases  submitted  by  the  contracting  powers. 

“ The  establishment  of  the  court  of  arbitral  justice  would  not 
interfere  with  the  court  of  arbitration  instituted  by  the  Conference 
of  1899  and  continued  by  the  Conference  of  1907,  for  this  latter  is 
a temporary  tribunal,  erected  for  a particular  purpose,  to  decide  as 
arbiters  a controversy  submitted.  The  court  of  arbitral  justice,  on 
the  contrary,  is  meant  to  be  a permanent  court,  composed  of  judges 
acting  under  a sense  of  judicial  responsibility,  representing  the  vari- 
ous legal  systems  of  the  world,  and  capable  of  assuring  the  conti- 
nuity of  arbitral  jurisprudence  (Article  i ) . The  contracting  powers 
are  free  to  appoint  either  a large  or  a small  number  of  judges; 
but  it  is  provided  in  Article  3 that  the  judges  so  appointed  shall 
hold  office  for  a period  of  twelve  years,  and  that  they  shall  be  chosen 
from  among  persons  enjoying  the  highest  moral  consideration,  who 
meet  the  requirements  for  admission  in  their  respective  countries  to 


INTERNATIONAL  COURT  OF  JUSTICE  33 

the  high  magistracy,  or  who  shall  be  jurists  of  recognized  com- 
petency in  matters  of  international  law  (Article  2). 

“ From  these  provisions  it  is  evident  that  the  proposed  institu- 
tion is  to  be  not  merely  in  name  but  in  fact  a court  of  justice;  that 
it  is  to  be  permanent  in  the  sense  that  it  does  not  need  to  be  con- 
stituted for  any  and  every  case  submitted  to  it.  It  is  obvious  that 
such  a court,  acting  under  a sense  of  judicial  responsibility,  would 
decide,  as  a court,  according  to  international  law  and  equity,  a ques- 
tion submitted  to  it,  and  that  the  idea  of  compromise  hitherto  so  in- 
separable from  arbitration,  would  be  a stranger  to  this  institution. 
The  court  is  said  to  be  permanent  in  the  sense  that  it  holds,  as  courts 
do,  certain  specified  terms  for  the  trial  of  cases.  For  example. 
Article  14  says: 

“ The  court  assembles  in  session  once  a year.  The  session  be- 
gins on  the  third  Wednesday  of  Jtme  and  lasts  until  the  calendar 
shall  have  been  exhausted. 

“ The  court  does  not  assemble  in  session  if  the  meeting  is 
deemed  unnecessary  by  the  delegation.  If,  however,  a power  is  a 
party  to  a case  actually  pending  before  the  court,  the  preliminary 
proceedings  of  which  are  completed  or  near  completion,  that  power 
has  the  right  to  demand  that  the  session  take  place. 

“ The  delegation  may,  in  case  of  necessity,  call  an  extraor- 
dinary session  of  the  court.” 

“ It  was  deemed  inexpedient  to  have  an  empty  court  at 
The  Hague,  and  it  was  felt  that  without  a judicial  committee 
capable  of  transacting  the  ordinary  business  that  might  be  sub- 
mitted permanency  in  the  true  sense  of  the  word  would  be  lack- 
ing, therefore  it  is  provided  by  Article  6 of  the  project  that : 

“ The  Court  designates,  every  year,  three  judges  who  constitute 
a special  delegation  and  three  others  who  are  to  take  their  places 
in  case  of  disability.  They  may  be  re-elected.  The  vote  is  cast  by 
blanket  ballot.  Those  who  obtain  the  larger  number  of  votes  are 
considered  to  be  elected.  The  delegation  elects  its  own  president, 
who,  failing  a majority,  is  drawn  by  lot. 

“ A member  of  the  delegation  is  barred  from  the  exercise  of 
his  functions  when  the  power  by  which  he  was  appointed  and  under 
whose  jurisdiction  he  is  one  of  the  parties  to  the  case. 

“ The  members  of  the  delegation  bring  to  a conclusion  the  cases 


34 


THE  STATUS  OF  THE 


that  may  have  been  referred  to  therein,  even  though  their  term  of 
office  should  have  expired.” 

“ Taking  the  two  articles  together,  it  is  apparent  that  the  court 
as  such  is  intended  to  be  permanently  in  session  at  The  Hague ; that 
the  judicial  committee  will  attend  to  the  smaller  cases  submitted, 
and  that  the  full  court  will  meet  in  ordinary  or  extraordinary  ses- 
sion once  a year  or  whenever  the  business  before  it  would  justify 
its  assembling.  The  judges  are  intended  to  be  permanent  court  of- 
ficials and  as  such  to  receive  stated  salaries  whether  they  are  actively 
engaged  at  The  Hague  in  the  trial  of  cases  or  not.  The  compensa- 
tion is  small  (six  thousand  florins),  but  the  honor  is  great.  If, 
however,  a judge  sits  as  a trial  judge  at  The  Hague,  his  expenses 
to  and  from  The  Hague  are  paid  according  to  the  rate  allowed  in 
the  home  country  for  the  travelling  expenses  of  a judge  in  service, 
and  in  addition  the  judge  is  to  receive  the  further  sum  of  one  hun- 
dred florins  a day  during  his  official  service  in  the  examination  or 
trial  of  cases. 

“ The  first  article  speaks  of  a court  free  and  easy  of  access.  It 
is  easy  of  access  because  it  is  permanent  and  has  stated  terms.  It 
is  free  because  no  fees  are  paid  for  entrance,  and  it  is  likewise  free 
in  this  sense:  That  the  salaries  of  the  judges  are  not  paid  by  the 
litigating  parties,  but  proportionately  by  the  contracting  powers. 
The  jurisdiction  of  the  court  is  very  wide;  for  example,  “ the  court 
of  arbitral  justice  is  competent  to  decide  all  cases  which  are  sub- 
mitted to  it  by  virtue  of  a general  stipulation  of  arbitration  or  by 
a special  agreement  ” (Article  17) ; that  is  to  say,  if  there  be  a gen- 
eral treaty  of  arbitration  designating  the  court  of  arbitral  justice, 
the  court  is  competent,  if  the  cause  of  action  be  presented,  to  as- 
sume jurisdiction  and  to  decide  the  case.  It  may  be  that  parties  to 
a controversy  may  submit  the  findings  of  a commission  of  inquiry 
to  the  court  in  order  to  have  the  legal  responsibility  established  in 
an  appropriate  case,  or  it  may  be  that  parties  to  an  arbitration  may 
wish  to  have  the  case  examined  when  on  appeal  or  de  novo  by  the 
court  of  arbitral  justice.  In  such  a case,  by  virtue  of  the  special 
agreement  of  the  parties  litigant,  the  court  is  invested  with  jurisdic- 
tion. 

“ It  was  not  thought  advisable  to  clothe  the  judicial  committee 
with  the  jurisdiction  of  the  full  court,  lest  there  be  two  competing 


INTERNATIONAL  COURT  OF  JUSTICE 


35 


institutions.  The  judicial  committee  is,  however,  expected  to  be  a 
serviceable  body,  and  its  jurisdiction  is  commensurate  with  its  dig- 
nity. For  example.  Article  i8  provides : 

“ ‘ The  delegation  (Article  6)  is  competent: 

“ ‘ I.  To  hear  arbitration  cases  coming  under  the  foregoing 
article,  if  the  parties  agree  upon  demanding  the  application  of  sum- 
mary procedure  as  determined  in  Title  IV,  Ch.  IV,  of  the  Conven- 
tion of  July  29,  1899. 

“ ‘ 2.  To  institute  an  inquiry  by  virtue  of  and  in  conformity  to 
Title  III  of  the  Convention  of  July  29,  1899,  in  so  far  as  the  dele- 
gation may  have  been  charged  with  this  duty  by  the  litigants  acting 
in  common  accord.  With  the  assent  of  the  parties  and  in  derogation 
of  Article  7,  Section  i,  members  of  the  delegation  who  took  part 
in  the  inquiry  may  sit  as  judges  if  the  dispute  comes  for  arbitra- 
tion before  either  the  court  or  the  delegation  itself.’ 

“ The  judicial  committee,  therefore,  is  competent  to  sit  as  the 
court  of  summary  proceeding  in  cases  where  parties  litigant  agree 
to  make  use  of  the  summary  proceeding  of  the  revised  convention. 
It  is  likewise  competent  to  sit  as  a commission  of  inquiry;  and  as 
the  commission  of  inquiry  finds  facts,  there  seems  to  be  no  reason 
why  the  members  of  the  judicial  committee  may  not  sit  as  judges 
if  the  litigation  is  submitted  to  the  full  court  or  to  the  delegation. 

“ Article  19  invests  the  judicial  committee  with  the  power  to 
frame  the  special  agreement — that  is  to  say,  the  compromis  pro- 
vided for  in  Article  52  of  the  convention  for  the  peaceful  adjust- 
ment of  international  differences,  already  mentioned — unless  there 
be  an  agreement  or  stipulation  to  the  contrary. 

“ The  procedure  of  the  court  has  not  been  neglected,  but  finds 
an  appropriate  place  in  the  project  of  convention. 

“ The  establishment  of  the  Permanent  Court  was  proposed  by 
the  American  delegation,  was  accepted  in  principle  and  loyally  sup- 
ported by  the  delegations  of  Germany  and  Great  Britain,  and  the 
project  actually  framed  and  recommended  by  the  Conference  is  the 
joint  work  of  the  American,  German  and  British  delegations.  It 
should  be  said,  however,  that  the  project  could  not  have  been 
adopted  without  the  loyal  and  unstinted  support  of  France. 

“ From  this  brief  exposition  it  is  evident  that  the  foundations 
of  a Permanent  Court  have  been  broadly  and  firmly  laid ; that  the 


36 


THE  STATUS  OF  THE 


organization,  jurisdiction  and  procedure  have  been  drafted  and  rec- 
ommended in  the  form  of  a code  which  the  ppwers  or  any  number 
of  them  may  accept  and,  by  agreeing  upon  the  appointment  of 
judges,  call  into  being  a court  at  once  permanent  and  international. 
A little  time,  a little  patience,  and  the  great  work  is  accomplished.” 

It  would  have  been  well  to  retain,  in  the  project  as  adopted  by 
the  Conference,  Article  13  of  the  original  draft  as  prepared  but 
not  submitted  by  the  American  delegation.  Had  this  been  done  we 
would  have  had  a court  of  justice  competent  to  decide  every  dis- 
pute of  an  international  nature  submitted  to  it,  and  the  invitation 
to  appear  before  it  and  to  submit  to  its  jurisdiction  would  have 
been  in  fact,  if  not  in  theory,  tantamount  to  the  summons  of  na- 
tional courts.  This  article,  however,  was  not  retained.  It  is  im- 
portant, and  the  services  it  would  render  have  been  pointed  out  by 
the  distinguished  Professor  Nys,  who  is  not  only  an  international 
lawyer  of  the  highest  standing,  intent  upon  the  equality  and  sover- 
eignty of  states  which  he  would  not  wish  to  see  violated,  but  who 
sees  in  the  administration  of  justice  by  an  international  tribunal 
composed  of  judges  the  realization  of  international  peace.  As  a 
judge  he  recognizes  the  limitations  as  well  as  the  advantages  of  ju- 
dicial process. 

In  an  interesting  article  contributed  to  the  American  Journal  of 
International  Law  (Vol.  6,  pp.  308-10)  Professor  Nys  says: 

“An  ingenious  proposal  [Article  13  of  the  American  draft] 
was  submitted  to  various  members  of  the  Second  Hague  Confer- 
ence regarding  the  jurisdiction  of  the  permanent  judicial  court 
which  was  to  be  established.  According  to  this  plan  the  court  shall 
be  competent  to  receive,  consider  and  determine  any  claims  or  pe- 
titions from  a sovereign  state  touching  any  difference  of  an  inter- 
national character  with  another  sovereign  State,  provided  that  such 
difference  is  not  political  in  character  and  does  not  involve  the 
honor,  independence  and  vital  interests  of  any  state.  It  shall  not 
be  competent  concerning  any  petition  or  application  from  any  per- 
son, natural  or  artificial,  except  a sovereign  state.  It  shall  not  take 
any  action  on  any  petition  or  application  which  it  is  competent  to 
receive,  unless  it  shall  be  of  the  opinion  that  a justiciable  case,  and 
one  which  it  is  competent  to  entertain  and  decide  and  worthy  of  its 
consideration,  has  been  brought  before  it,  in  which  case  it  may,  in 


INTERNATIONAL  COURT  OF  JUSTICE  37 

not  less  than  thirty  nor  more  than  ninety  days  after  the  presenta- 
tion of  the  petition,  invite  the  other  sovereign  state  to  appear  and 
submit  the  matter  to  judicial  determination  by  the  court.  It  fol- 
lows that  it  would  be  possible  for  a state  to  call  another  state  to 
the  bar  and  thus  bring  about  a judicial  presentation  of  the  ques- 
tion. It  is  true  that  one  danger  exists  which  must  be  avoided — 
that  of  wounding  the  pride  of  a sovereign  state.  However,  the  fol- 
lowing provision  obviates  the  difficulty:  Should  the  court  invite 
a state  to  appear  and  submit  the  matter  to  judicial  determination, 
the  state  so  invited  may  (a)  refuse  to  submit  the  matter;  (b)  re- 
frain from  submitting  the  matter  by  failing  for  a certain  number 
of  days  to  make  any  response  to  the  invitation,  in  which  event  it 
shall  be  deemed  to  have  refused;  (c)  submit  the  matter  in  whole; 
(d)  offer  to  submit  the  matter  in  part  or  in  different  form  from  that 
stated  in  the  petition,  in  which  event  the  petitioning  state  shall  be 
free  either  to  accept  the  qualified  submission  or  to  withdraw  its  pe- 
tition or  application;  (e)  appear  for  the  sole  purpose  of  denying 
the  right  of  the  petitioning  state  to  any  redress  or  relief;  in  case 
the  court  does  not  sustain  this,  it  shall  renew  the  invitation  to  ap- 
pear. In  case  the  states  in  controversy  cannot  agree  upon  the  form 
and  scope  of  the  submission  of  the  difference  referred  to  in  the 
petition,  the  court  may  appoint,  upon  the  request  of  either  party,  a 
committee  of  three  from  the  Administrative  Council,  and  this  com- 
mittee shall  frame  the  questions  to  be  submitted  and  the  scope  of  the 
inquiry,  and  thereafter  if  either  party  shall  withdraw,  it  shall  be 
deemed  to  have  refused  to  submit  the  matter  involved  to  judicial 
determination.  If  such  a procedure  could  be  decided  upon,  all  the 
difficulties  which  beset  the  path  of  arbitration  would  be  overcome. 
The  court  of  justice  would  be  ready  to  hear  the  lawyers  and  rep- 
resentatives of  the  states,  parties  to  the  cause,  and  it  could  act  in 
its  capacity  as  a judicial  tribunal  and  arbitration  would  be  super- 
fluous. There  would  be  no  longer  necessity  for  general  arbitration 
conventions,  nor  special  compromis  concluded  with  regard  to  a 
particular  dispute;  all  states  would  be  in  the  presence  of  a true 
international  tribunal  and  in  the  position  of  the  citizen  of  a civ- 
ilized country  who,  having  an  injury  done  to  his  rights,  may  cite 
him  whom  he  accuses  to  have  been  the  author  of  the  wrong  to 
meet  him  before  established  tribunals.” 


38  THE  STATUS  OF  THE 

If  it  be  asked  why  the  Conference  ap- 
proved in  principle  the  establishment  of  an 
international  court,  badly  named  “ the 
Court  of  Arbitral  Justice,”  and  yet  failed  to 
constitute  the  court  by  the  appointment  of 
judges,  the  answer  is  that  no  delegation 
other  than  that  of  the  United  States  was 
instructed  to  propose  the  formation  of  such  a court ; that  the  ques- 
tion was  difficult  in  view  of  the  conflicting  desire  of  the  large  and 
of  the  small  nations  to  be  represented  in  it;  that  the  time  at  the 
disposal  of  the  Conference  was  limited,  being  in  session  but  four 
months  in  all,  and  that  many  and  important  subjects  had  tO'  be  con- 
sidered. The  larger  nations  wished  permanent  representation. 
The  smaller  nations  likewise  wished  to  be  represented.  If  each  na- 
tion could  have  appointed  a judge,  it  would  have  been  easy  to  com- 
pose the  court,  but  we  should  then  have  had  a judicial  assembly  of 
forty-four  members,  as  forty-four  states  were  represented  at  the 
Conference,  not  a court  of  a limited  number.  From  this  point  of 
view  the  difficulty  was  mathematical,  and  no  satisfactory  method 
was  found  at  the  time  to  reduce  forty-four  to  fifteen  without  ex- 
cluding judges  from  some  of  the  states.  A compromise  was  con- 
templated, for  it  would  have  been  possible  for  the  convention  to  rec- 
ommend the  appointment  of  certain  persons  peculiarly  qualified  to 
form  the  court  in  the  first  instance,  and  to  choose  their  successors 
through  diplomatic  channels,  or  by  methods  to  be  determined  later. 
The  judges,  however,  were  to  be  appointed  by  nations,  and  naturally 
the  smaller  nations  were  unwilling  to  admit  that  their  interests  in 
such  a court  were  less  than  the  interests  of  the  larger  powers,  or 
that  their  influence  in  the  constitution  of  the  court  should  be  less 
as  a matter  of  right,  although  it  might  be  so  as  a matter  of  fact. 
It  would  have  been  better  to  have  discarded  the  national  element 
entirely  and  to  have  selected  the  judges  with  reference  to-  their 
fitness  without  making  their  appointment  depend  upon  the  repre- 
sentation of  certain  nations,  although  the  nations  naturally  would 
have  to  decide  the  question  of  fitness.  The  American  delegation 
was  willing  to  accept  any  method  which  would  produce  an  ade- 
quate court,  whether  or  not  a citizen  of  the  United  States  should 
be  chosen,  a statement  specifically  made  by  the  delegation  in  the 


Why  the  Court 
Was  Not  Actually 
Established  at 
the  Second  Hague 
Conference. 


INTERNATIONAL  COURT  OF  JUSTICE  39 

discussion  of  the  matter.  Other  nations,  however,  refused  to  do 
this.  It  should  be  said  that  Mr.  Choate,  on  behalf  of  the  Ameri- 
can delegation,  laid  before  the  Conference  ten  different  and  dis- 
tinct methods  of  composing  the  court,  in  an  address  which  is  in- 
cluded in  the  appendix,  and  it  is  believed  that  no  more  practical 
methods  have  been  since  proposed.  It  is  deeply  to  be  regretted  that 
the  court  was  not  created  at  the  Conference,  but  it  is  only  a fable 
that  Minerva  sprang  fully  equipped  from  the  head  of  Jove.  The 
acceptance  of  the  principle  carries  with  it  its  consequences,  and 
sooner  or  later — its  partisans  hope  it  may  be  soon — the  principle 
is  bound  to  be  put  into  practice  and  an  international  court  of  jus- 
tice established  between  nations. 

Another  reason  why  the  court  was  not  created  was,  to  use  an 
expression  of  daily  occurrence  at  the  Conference,  that  the  time  was 
not  ripe  for  it.  This,  it  is  to  be  feared,  is  a polite  excuse  for  fail- 
ing to  do  what  one  does  not  want  to  do,  and  yet  it  is  a fact  that 
however  strongly  public  sentiment  in  the  United  States  may  have 
wished  the  court,  it  cannot  be  said  that  public  opinion  existed  in 
its  favor  in  other  countries.  But  public  sentiment  grows  with  time. 
The  servants  of  the  people,  not  excluding  therefrom  delegates  of 
international  conferences,  lend  a willing  ear  to  its  dictation,  and 
public  sentiment  has  declared  itself  in  favor  of  the  court  since  the 
adjournment  of  the  Conference. 

The  recommendation  of  the  Conference  that  the  international 
court  be  established  through  diplomatic  channels  after  the  ad- 
journment was  not  meant  to  be  a dead  letter,  and  the  sponsors 
have  not  regarded  it  as  tantamount  to  a decent  burial  of  the  prop- 
osition, for  each  of  the  interested  powers,  including  France,  has 
stated  its  willingness,  and  indeed  its  intention,  to  co-operate  in  its 
constitution,  not  only  by  word  of  mouth  at  the  Conference,  but  in 
formal  and  official  statements.  Let  us  examine  these  official  state- 
ments in  alphabetical  order  of  the  names  of  the  countries  in  French, 
as  is  the  wont  of  diplomacy. 

In  the  official  report  on  the  Conference,  known  as  the  White 
Book,  laid  before  the  Reichstag,  the  German  Government  said; 

“ The  organization  of  such  an  arbitral  court  was  proposed  at 
the  Conference  by  the  United  States  of  America.  The  proposal 
sought,  as  far  as  possible,  to  facilitate  arbitration,  and  for  that  pur- 


40 


THE  STATUS  OF  THE 


pose  to  create  a permanent  universal  court  of  justice  composed 
in  a definite  manner,  which  should  meet  each  year 
Attitude  Hague,  in  order  to  decide,  free  of  cost,  all 

of  Powers  controversies  submitted  to  it  by  the  contracting 
Proposing  powers.  Such  an  organization  appeared  to  be  a 
the  Court.  thoroughly  appropriate  step,  which  met  also  the  pur- 
poses which  Germany  sought  to  attain.  The  German 
delegation,  therefore,  earnestly  supported  the  proposal,  and  in  co- 
operation with  the  American  and  British  delegation  drafted  and 
submitted  an  adequate  proposition  to  the  Conference.  The  proposal 
did  not,  however,  lead  to  the  conclusion  of  a treaty,  for  the  reason 
that  the  members  of  the  Conference  recommended  the  powers  to 
accept  the  draft  based  upon  the  proposal  referred  to,  as  soon  as 
an  agreement  could  be  reached  in  regard  to  an  appropriate  composi- 
tion of  the  court.  Germany  stands  ready  to  co-operate  in  the 
establishment  of  the  court.” 

In  the  French  report,  known  as  the  Yellow  Book,  it  is  said: 

“ Each  of  the  states  must  exert  special  efforts  to  carry  out,  as 
far  as  possible,  the  voeux,  resolutions  or  recommendations,  by 
which  the  Conference,  in  matters  upon  which  it  could  not  reach  a 
conclusion,  has  emphatically  signified  its  desire  to  see  the  govern- 
ments complete  its  work.  It  will  suffice  to  refer  to  the  negotiations 
requisite  to  give  definitive  form  to  the  permanent  Court  of  Arbitral 
Justice,  whose  operation  depends  upon  an  agreement  regarding  the 
manner  of  selecting  the  judges.” 

The  British  Blue  Book,  after  regretting  the  failure  of  the  Con- 
ference to  create  a court,  expressed  the  hope  that  it  may  be  insti- 
tuted, saying: 

“ We  cannot  but  hope  that  the  difficulties  which  we  have 
been  unable  to  overcome  may  in  the  end  be  surmounted, 
and  that  our  labor  as  pioneers  may  in  the  end  not  prove  entirely 
fruitless.” 

The  American  report,  already  quoted,  says  on  this  point: 

“ It  is  evident  that  the  foundations  of  a Permanent  Court  have 
been  broadly  and  firmly  laid;  that  the  organization,  jurisdiction  and 
procedure  have  been  drafted  and  recommended  in  the  form  of  a 
code  which  the  powers,  or  any  number  of  them,  may  accept,  and 
by  agreeing  upon  the  appointment  of  judges,  call  into  being  a court 


INTERNATIONAL  COURT  OF  JUSTICE 


41 


at  once  permanent  and  international.  A little  time,  a little  patience, 
and  the  great  work  is  accomplished.” 

This  latter  statement  should  be  supplemented  by  a passage  from 
the  President’s  Message  to  Congress  of  December,  1907: 

“ Substantial  progress  was  also  made  towards  the  creation  of  a 
permanent  judicial  tribunal  for  the  determination  of  international 
causes.  There  was  very  full  discussion  of  the  proposal  for  such 
a court  and  a general  agreement  was  finally  reached  in  favor  of 
its  creation.  The  Conference  recommended  to  the  Signatory  Pow- 
ers the  adoption  of  a draft  upon  which  it  agreed  for  the  organiza- 
tion of  the  court,  leaving  to  be  determined  only  the  method  by 
which  the  judges  would  be  selected.  This  remaining  unsettled 
question  is  plainly  one  which  time  and  good  temper  will  solve.” 

It  thus  appears  that  each  of  the  interested  gov- 
ernments has  confirmed  the  action  of  its  dele- 
gates at  the  Conference  and  that  each  stands 
ready  to  co-operate  in  the  establishment  of  the 
court.  It  is  well  known  that  steps  have  been 
taken,  as  recommended  by  the  Conference,  to 
establish  the  court  and  that,  as  was  eminently 
proper,  the  American  Government  took  the  initiative.  It  is  diffi- 
cult to  state  what  has  been  done,  as  diplomatic  notes  are  not  ordi- 
narily made  public  during  negotiations,  and  it  would  probably  be 
regarded  as  a breach  of  confidence  by  the  governments  chiefly 
concerned  if  the  notes  were  published  at  this  time.  An  official  note 
of  the  Department  of  State  has,  however,  been  published,  giving 
some  interesting  information  as  to  the  action  of  the  United  States. 
From  this  source  it  is  learned  that  Mr.  Robert  Bacon,  as  Secretary 
of  State,  took  advantage  of  the  meeting  of  the  Naval  Conference 
at  London  in  1908-9  to  propose  that  the  International  Prize  Court 
should  be  invested  with  the  jurisdiction  and  functions  of  the  Court 
of  Arbitral  Justice,  and  that  when  so  sitting  it  should  act  in  ac- 
cordance with  the  draft  convention  for  the  establishment  of  the 
arbitral  court,  adopted  by  the  Conference  and  recommended  tO'  the 
powers.  Mr.  Bacon’s  instruction  was  dated  February  6,  1909,  and 
is  as  follows: 

“ In  order  to  confer  upon  the  Prize  Court  the  functions  of 
an  arbitral  court  contemplated  in  the  first  recommendation  of 


Efforts  to 
Establish  the 
Court  Since  the 
Second  Hague 
Conference. 


42 


THE  STATUS  OF  THE 


the  final  act  of  the  Second  Conference,  the  Department  proposes 
the  following  article  additional  to  the  draft  protocol  concern- 
ing the  Prize  Court,  next  to  the  last  paragraph  of  your  instruc- 
tions : 

“ ‘ And  any  signatory  of  the  convention  for  the  establishment 
of  the  Prize  Court  may  provide  further  in  the  act  of  ratification 
thereof  that  the  international  court  of  prize  shall  be  competent  to 
accept  jurisdiction  of  and  decide  any  case  arising  between  signa- 
tories of  this  proposed  article  submitted  to  it  for  arbitration,  and 
the  International  Prize  Court  shall  thereupon  accept  jurisdiction 
and  adopt  for  its  consideration  and  decision  of  the  case  the  project 
of  convention  for  the  establishment  of  a Court  of  Arbitral  Justice 
adopted  by  the  Second  Hague  Conference,  the  establishment  of 
which  was  recommended  by  the  powers  through  diplomatic  chan- 
nels. 

“ ‘ Any  signatory  of  the  convention  for  the  establishment  of 
the  international  court  of  prize  may  include  in  its  ratification 
thereof  the  proposed  articles  and  become  entitled  to  the  benefits 
thereof.’ 

“ The  Department  earnestly  hopes  and  urges  adoption  of  the 
proposed  articles.” 

The  Naval  Conference  considered  the  proposal  to  invest  the 
Prize  Court  with  the  jurisdiction  and  functions  of  the  Court  of 
Arbitral  Justice  as  beyond  its  scope,  and  suggested  that  a matter  of 
such  magnitude  should  be  prosecuted  through  diplomatic  channels. 
Therefore,  on  March  5,  1909,  Secretary  Bacon  notified  the  coun- 
tries represented  at  the  Maritime  Conference  of  the  intention  of  the 
United  States  to  prepare  and  to  transmit  an  identic  circular  note 
showing 

“ The  advisability  of  investing  the  Prize  Court  with  the  juris- 
diction and  functions  of  a court  of  arbitral  justice  in  order  that  in- 
ternational law  may  be  administered  and  justice  done  in  peace  as 
well  as  in  war  by  a permanent  international  tribunal ; that  this  close 
connection  between  the  two  courts  was  contemplated  by  the  fram- 
ers of  the  arbitral  court  as  appears  from  Article  16  of  the  draft  con- 
vention by  virtue  of  which  the  judges  of  the  arbitral  court  might 
exercise  the  functions  of  judges  in  the  Prize  Court.  The  failure  to 
constitute  the  arbitral  court,  although  the  method  of  appointing 


INTERNATIONAL  COURT  OF  JUSTICE  43 

judges  was  substantially  the  same  for  both  courts,  renders  this  pro- 
vision ineffective,  but  it  is  possible  to  carry  out  the  intent  of  the  pro- 
posers in  this  and  to  constitute  the  arbitral  court  by  investing  the 
Prize  Court  with  the  functions  of  an  arbitral  court  and  to  prescribe 
the  draft  convention  of  the  arbitral  court  as  a code  of  procedure 
when  so  acting.” 

It  is  important  to  quote  another  passage  from  Mr.  Bacon’s  in- 
struction of  March  5,  1909,  as  it  shows  not  only  the  earnest  desire 
of  the  Government,  but  that  the  consent  of  the  powers  to  the  estab- 
lishment of  the  court  should  depend  solely  upon  their  matured 
judgment : 

“ It  is  not  the  intention  of  this  Government  to  use  pressure  of 
any  kind  to  secure  the  acceptance  of  its  views,  but  the  United  States 
feels  that  the  constitution  of  the  Arbitral  Court  as  a branch  or 
chamber  of  the  Prize  Court  for  the  nations  voluntarily  consenting 
thereto  would  not  only  enhance  the  dignity  of  the  Prize  Court,  but 
by  creating  a permanent  court  of  arbitration  would  contribute  in 
the  greatest  manner  to  the  cause  of  judicial,  and  therefore  peace- 
able, settlement  of  international  difficulties.” 

Mr.  Bacon’s  successor,  Mr.  Philander  C.  Knox,  therefore  made 
the  formal  proposition,  in  a note  dated  October  18,  1909,  from 
which  the  following  passages  are  quoted : 

“ It  has  been  a subject  of  profound  regret  to  the  Government 
and  people  of  the  United  States  that  a Court  of  Arbitral  Justice, 
composed  of  permanent  judges  and  acting  under  a sense  of  judicial 
responsibility,  representing  the  various  judicial  systems  of  the  world 
and  capable  of  insuring  continuity  in  arbitral  jurisprudence,  was 
not  established  at  the  Second  Hague  Peace  Conference,  and  the 
United  States  likewise  regrets  that  the  composition  of  the  proposed 
Court  of  Arbitral  Justice  has  not  yet  been  effected  through  diplo- 
matic channels,  in  accordance  with  the  following  recommendation 
of  the  Conference: 

The  Conference  recommends  to  the  Signatory  Powers  the 
adoption  of  the  project,  hereunto  annexed,  of  a convention  for  the 
establishment  of  a court  of  arbitral  justice  and  its  putting  intO'  ef- 
fect as  soon  as  an  agreement  shall  have  been  reached  as  to  the  choice 
of  the  judges  and  the  constitution  of  the  court.’ 

“ A careful  consideration  of  the  project  and  of  the  difficulties 


44 


THE  STATUS  OF  THE 


preventing  the  constitution  of  the  court,  owing  to  the  shortness  of 
time  at  the  disposal  of  the  Conference,  has  led  the  Government  of 
the  United  States  to  the  conclusion  that  it  is  necessary  in  the  in- 
terest of  arbitration  and  the  peaceful  settlement  of  international  dis- 
putes to  take  up  the  question  of  the  establishment  of  the  court  as 
recommended  by  the  recent  Conference  at  The  Hague  and  secure 
through  diplomatic  channels  its  institution. 

“ The  necessary  and  close  connection  between  the  International 
Prize  Court  and  the  proposed  Court  of  Arbitral  Justice  was  in- 
dicated in  Article  i6  of  the  draft  convention  of  the  Court  of  Arbi- 
tral Justice,  as  follows: 

“ ‘ The  judges  and  deputy  judges,  members  of  the  Judicial  Arbi- 
tration Court,  can  also  exercise  the  functions  of  judge  and  deputy 
judge  in  the  International  Prize  Court.’ 

“ The  reason  which  existed  in  1907  and  led  to  the  formulation 
of  the  articles  still  continues.  It  has,  therefore,  occurred  to  the 
United  States  that  the  difficulty  in  the  way  of  reaching  an  agree- 
ment upon  the  composition  of  the  court  would  be  obviated  by  giv- 
ing practical  effect  to  Article  16  by  an  international  agreement  by 
virtue  of  which  the  judges  of  the  International  Prize  Court  should 
be  competent  to  sit  as  judges  of  the  Court  of  Arbitral  Justice  for 
such  nations  as  may  freely  consent  thereto,  and  that  when  so  sitting 
the  judges  of  the  International  Prize  Court  shall  entertain  jurisdic- 
tion of  any  case  of  arbitration  submitted  by  a signatory  for  their 
determination  and  decide  the  same  in  accordance  with  the  proce- 
dure prescribed  in  the  draft  convention.  In  proposing  to  invest  the 
International  Prize  Court  with  the  jurisdiction  and  functions  of  the 
proposed  Court  of  Arbitral  Justice  the  United  States  is  actuated  by 
the  desire  to  establish  a court  of  arbitration  permanently  in  session 
at  The  Hague  for  the  peaceful  solution  of  controversies  arising  in 
time  of  peace  between  the  nations  accepting  and  applying  in  their 
foreign  relations  the  principles  of  an  enlightened  and  progressive 
law. 

“ It  is  a truism  that  it  is  easier  to  enlarge  the  jurisdiction  of  an 
existing  institution  than  to  call  a new  one  into  being,  and  as  the 
judges  and  deputy  judges  of  the  International  Prize  Court  must 
be  thoroughly  versed  in  international  law  and  of  the  highest 
moral  reputation,  there  can  be  no  logical  or  inherent  objection 


INTERNATIONAL  COURT  OF  JUSTICE  45 

to  enlarging  their  sphere  of  beneficent  influence  in  vesting  them 
with  the  quality  of  judges  of  the  proposed  Court  of  Arbitral 
Justice, 

“ The  proposal  of  the  United  States  does  not  involve  the  modi- 
fication either  of  the  letter  or  spirit  of  the  draft  convention,  nor 
would  it  require  a change  in  wording  of  any  of  its  articles.  It 
would,  however,  secure  the  establishment  of  the  Court  of  Arbitral 
Justice  as  a chamber  of  the  world’s  first  international  judiciary  and 
thus  complete  through  diplomatic  channels  the  work  of  the  Second 
Hague  Conference  by  giving  full  effect  to  its  first  recommenda- 
tion.” 

It  is  understood  that  the  replies  to  this  note  indicated  a willing- 
ness to  the  erection  of  the  court  as  a separate  institution,  not  as  a 
part  of  the  Prize  Court,  but  by  employing  for  this  purpose  the 
method  of  composition  of  this  latter  tribunal.  This  would  mean 
that  each  signatory  of  the  Prize  Court  Convention,  or  that  each 
power  willing  to  form  the  court,  should  appoint  a judge  and  a 
deputy;  that  the  judges  of  the  larger  powers  should  sit  during 
the  life  of  the  convention,  whereas  the  judges  of  the  other  powers 
would  sit  by  a system  of  rotation  for  shorter  periods.  But  even 
although  this  method  were  acceptable  to  the  large  powers,  there  is 
apparently  an  objection  to  it  on  the  part  of  the  smaller  states,  and 
there  is  a difficulty  in  the  way,  even  if  the  objection  should  be  over- 
come, because  this  method  of  composition  presupposes  the  definitive 
establishment  of  the  Prize  Court,  which  cannot  take  place,  it  would 
seem,  until  Great  Britain  ratifies  the  Prize  Court  Convention  and 
the  Declaration  of  London,  upon  which  the  creation  of  the  court 
depends.  It  is,  of  course,  theoretically  possible  that  the  Court  of 
Arbitral  Justice  might  be  constituted  by  adopting  the  method  of 
the  Prize  Court,  but  it  is  believed  that  the  powers  would  be  unwill- 
ing to  establish  the  Arbitral  Court  until  the  Prize  Court  itself  were 
in  being. 

So  much  for  the  difficulty;  next  as  to  the  objec- 
Objections  tion.  A method  similar  to  that  of  appointing  the 
Raised  judges  of  the  Prize  Court  was  proposed  at  the 

to  Proposed  Conference  for  the  Court  of  Arbitral  Justice  and 
Court.  was  rejected.  It  may  be  thought  strange  that  a 

method  practically  identical  should  succeed  in  one 


46 


THE  STATUS  OF  THE 


case  and  fail  in  the  other.  It  may  be  said  that  the  smaller  states 
were  willing  to  yield  a point  in  the  matter  of  the  Prize  Court, 
because  they  were  not  interested  in  it  to  the  same  extent  as  in  the 
Court  of  Arbitral  Justice,  although  it  is  believed  that  in  case  of 
war  the  judgments  of  the  Prize  Court  would  affect  neutral  rights 
and  duties  throughout  the  world,  and  that  all  states  would  neces- 
sarily be  interested  in  it,  as  they  would  be  affected  by  its  decisions. 
It  may  be  said  again  that  there  was  a difference  between  the  two 
courts,  as  the  jurisdiction  of  the  Prize  Court  is  necessarily  limited 
to  prize  cases,  whereas  the  Court  of  Arbitral  Justice,  without  juris- 
diction, is  nevertheless  of  unlimited  jurisdiction,  because  by  Article 
17  of  the  draft  convention  it  is  declared  “ competent  to  deal  with 
all  cases  submitted  to  it,  in  virtue  either  of  the  general  undertaking 
to  have  recourse  to  arbitration  or  of  a special  agreement.”  For 
the  reason  stated  this  difference  seems  more  specious  than  real, 
and  yet  it  is  not  without  foundation,  because  the  proposed  court 
might  pass  upon  all  phases  of  international  law  other  than  prize 
cases,  and  the  nations  as  a whole  are  and  must  be  interested  in 
the  growth  of  international  law  considered  as  a system  of  juris- 
prudence. 

However  this  may  be,  the  fact  is  that  the  smaller  powers  put 
up  with  inequality  in  one  case  and  refused  to  put  up  with  it  in  the 
other.  Facts  are  stubborn  things  and  they  cannot  be  argued  away. 
It  may  be,  however,  that  if  the  smaller  states  were  assured  that  the 
larger  ones  would  consent  to  establish  the  Court  of  Arbitral  Justice 
by  the  method  of  the  Prize  Court  and  if  they  now  recognize  the 
importance  of  the  court  and  the  services  it  would  render  to  them 
better  than  they  did  when  the  proposal  was  first  made  at  the  Con- 
ference, they  would  consent,  or  a goodly  portion  of  them  might 
consent,  to  its  establishment,  even  although  they  disliked  the  method. 
This  is  a matter,  however,  of  conjecture,  upon  which  no  opinion 
can  be  expressed  in  the  absence  of  definite  information.  It  should 
be  said,  however,  in  this  connection  that  the  partisans  of  the  Court 
of  Arbitral  Justice  did  not  insist  upon  the  creation  of  the  court 
by  all  the  powers,  as  they  knew  from  the  views  expressed  in  debate 
that  the  consent  of  all  was  impossible,  and  they  framed  the  recom- 
mendation for  its  constitution  through  diplomatic  channels  in  such 
a way  that  it  might  be  instituted  by  any  number  of  powers  willing 


INTERNATIONAL  COURT  OF  JUSTICE  47 

to  co-operate  in  its  establishment,  without,  however,  attempting  to 
fix  the  number.  This  is  pointed  out  in  more  than  one  passage 
of  the  official  report  of  the  American  delegation,  and,  in  view  of 
the  leading  role  of  the  American  delegation,  its  views  are  entitled 
to  more  than  ordinary  weight.  Thus,  “ it  follows,  therefore,  that 
the  powers  wishing  to  establish  the  court  are  free  to  adopt  the 
project  of  convention,  agree  upon  the  method  of  choosing  the 
judges,  and  establish  the  court  at  The  Hague  for  the  trial  of 
cases  submitted  by  the  contracting  powers.”  And  in  a later 
passage  it  is  said  that — 

“ From  this  brief  exposition  it  is  evident  that  the  foundations 
of  a Permanent  Court  have  been  broadly  and  firmly  laid ; that  the 
organization,  jurisdiction  and  procedure  have  been  drafted  and 
recommended  in  the  form  of  a code  which  the  powers  or  any 
number  of  them  may  accept  and,  by  agreeing  upon  the  appoint- 
ment of  judges,  call  into  being  a court  at  once  permanent  and 
international.  A little  time,  a little  patience,  and  the  great  work 
is  accomplished.” 

It  is  not  the  purpose  of  this  article  to  restate  either  the 
various  means  which  have  been  suggested  to  establish  the 
court,  as  Mr.  Choate’s  address  on  this  subject  is  printed  in  the 
appendix,  or  to  propose  methods  other  than  those  heretofore 
suggested. 

It  seems  advisable,  however,  to  call  attention  to  two  methods 
of  constituting  the  court : First,  by  the  method  of  election,  should 
the  nations  care  to  adopt  this  method,  as  urged  by  Mr.  Choate; 
and  second,  the  method  of  selection  upon  recommendation  of  the 
governments,  a method  advocated  by  Dutch  publicists  since  the 
adjournment  of  the  Conference.  Supposing  that  the  court  was  to 
consist  of  fifteen  judges,  Mr.  Choate  suggested  the  following  plan 
in  order  to  meet  the  desire  of  the  smaller  nations  that  each  nation 
should  participate  upon  an  absolute  equality  in  the  choice  of  the 
judges.  Thus: 

“ Article  i.  Every  signatory  power  shall  have  the  privilege 
of  appointing  a judge  and  an  assistant  qualified  for  and  disposed 
to  accept  such  positions  and  to  transmit  the  names  to  the  inter- 
national bureau. 

“ Article  2.  The  bureau,  that  being  the  case,  shall  make  a 


48 


THE  STATUS  OF  THE 


list  of  all  the  proposed  judges  and  assistants,  with  indication  of  the 
nations  proposing  them,  and  shall  transmit  it  to  all  the  signatory 
powers. 

“ Article  3.  Each  signatory  power  shall  signify  to  the  bureau 
which  one  of  the  judges  and  assistants  thus  named  it  chooses, 
each  nation  voting  for  fifteen  judges  and  fifteen  assistants  at  the 
same  time. 

“ Article  4.  The  bureau,  on  receiving  the  list  thus  voted  for, 
shall  make  out  a list  of  the  names  of  the  fifteen  judges  and  of 
the  fifteen  assistants  having  received  the  greatest  number  of  votes.” 

The  second  method  is  similar  to  but  not  identical  with  this,  and 
possesses  the  advantage  of  having  the  nations  as  a whole  pass 
upon  the  judges  who  have  been  recommended  by  the  nations  acting 
as  individual  units.  Thus,  each  nation  recommends  to  the  Adminis- 
trative Council  of  the  Permanent  Court  of  Arbitration  of  The 
Hague,  composed  of  the  diplomatic  agents  accredited  to  Holland, 
one  or  more  persons  possessing  the  qualifications  of  judges.  The 
Administrative  Council  then  selects  from  the  persons  thus  recom- 
mended the  number  of  judges  necessary  to  constitute  the  court. 
Either  method  would,  it  is  believed,  result  in  the  formation  of  a 
court  worthy  of  the  confidence  of  the  nations,  but  the  latter  has 
the  advantage  of  selection,  which  the  first  does  not  possess,  and 
of  election,  which  is  common  to  both.  The  difficulty  in  each  case, 
however,  is  the  same,  in  that  the  nation  does  not  directly  appoint 

It  is  not,  however,  essential  that  the  court 
should  be  formed  in  the  first  instance  for  the 
nations  as  a whole,  and  it  is  deemed  proper  in 
this  connection  to  show  how  it  could  be  established 
for  a limited  number  of  powers,  willing  to  institute 
it  for  themselves,  without  seeking  directly  or  in- 
directly to  persuade  the  powers  unwilling  to  con- 
stitute it  to  become  parties  to  it — in  other  words,  to  try  the  ex- 
periment upon  a smaller  scale,  for  we  must  admit  that  an  inter- 
national court  is  an  experiment,  before  attempting  it  upon  a large 
scale,  in  the  hope  that  experience  will  demonstrate  the  usefulness 
of  the  court  and  the  appropriate  method  of  constituting  it  for  all 
members  of  the  society  of  nations  that  take  an  interest  in  the 


the  judge. 

Proposal  of 
Court 

for  Limited 
Number 
of  Powers. 


INTERNATIONAL  COURT  OF  JUSTICE  49 

development  of  international  law  and  its  application  to  concrete 
cases  involving  such  law.  Such  a tribunal  would  be  temporary  in 
the  sense  that  it  might  be  replaced  by  the  larger  court,  should  an 
agreement  be  reached  upon  its  constitution,  and  the  writer  ventures 
the  suggestion  that  the  attempt  should  be  made  in  the  very  near 
future,  so  that  before  the  meeting  of  the  Third  Conference  it  should 
be  found  in  existence,  because,  in  the  first  place,  it  is  easier  to 
modify  an  existing  institution  than  to  create  one  out  of  whole 
cloth,  if  the  expression  be  allowed,  and  because,  in  the  second  place, 
the  creation  and  successful  operation  of  such  a court  would  insure 
the  inclusion  of  the  project  in  the  program  of  the  Third  Con- 
ference, would  concentrate  attention  upon  it,  and  force  the  govern- 
ments to  consider  it  in  advance  of  the  meeting  of  the  Conference, 
which  would  in  all  probability  secure  its  definitive  establishment 
by  the  delegates  to  the  Third  Conference. 

It  has  been  said  that  the  larger  powers  are,  it  is  believed,  willing 
to  constitute  the  court,  if  they  are  assured  of  permanent  representa- 
tion in  it,  as  in  the  case  of  the  Prize  Court.  If  these  larger  powers 
— eight  in  number,  namely,  Germany,  United  States,  Austria- 
Hungary,  France,  Great  Britain,  Italy,  Japan  and  Russia — would 
agree  to  constitute  the  court  for  themselves,  the  question  of  equality 
of  representation  would  not  arise,  as  each  would  naturally  appoint 
a judge  in  a court  created  by  them.  In  this  case  the  same  result 
would  be  accomplished,  as  far  as  the  larger  powers  were  concerned, 
as  if  the  Prize  Court  had  been  established  with  the  jurisdiction  and 
functions  of  the  Court  of  Arbitral  Justice,  or  as  if  the  Arbitral 
Court  had  been  instituted  according  to  the  method  adopted  by 
the  Prize  Court  Convention  for  the  composition  of  that  court.  It 
would  not  be  national,  although  national  members  would  be 
appointed ; it  would  be  international,  in  the  sense  that  it  would  deal 
with  international  problems,  although  it  would  only  be  the  court 
of  the  nations  composing  it.  It  could,  therefore,  be  called  with 
perfect  propriety  an  international  court,  although  it  would  not  be 
the  court  of  all  the  nations.  There  could  be  no  doubt  that  such 
a tribunal  would  be  a good  thing  in  itself  and  the  services  it  would 
render  would  undoubtedly  make  it  easier  to  create  a court  of  the 
society  of  nations,  because  created  by  the  society,  and  a great 
impetus  would  be  given  to  the  formation  of  this  larger  court,  if  it 


50 


THE  STATUS  OF  THE 


were  provided  that  a non-contracting  nation  might  submit  its  dis- 
putes with  a contracting  nation  to  the  court,  or  if  the  two  non- 
contracting nations  could  avail  themselves  of  it.  In  such  a case 
each  non-contracting  nation  might  appoint  a judge  for  the  trial 
of  the  case  in  which  it  was  interested.  This  could  be  done  with- 
out violating  the  principle  of  equality,  because,  even  if  the  dispute 
were  between  a contracting  and  a non-contracting  nation,  the 
submission  to  the  court  would  mean  the  submission  of  the  nations 
in  litigation  to  the  judgment  of  the  judges  whom  they  had  not 
chosen,  but  in  which  for  the  trial  of  the  particular  case  they  were 
equally  represented. 

The  advantages  of  such  a provision  are,  it  is  believed,  clear 
without  argument.  It  would  convince  the  world  at  large  that 
the  eight  nations  were  genuinely  interested  in  the  administration 
of  international  justice,  not  only  so  far  as  they  themselves 
were  concerned,  but  by  non-contracting  nations  as  well.  It  would 
eliminate  the  criticism  of  exclusiveness,  which  otherwise  might  be 
made.  It  would  show  their  confidence  in  judicial  procedure  by 
adopting  it  for  themselves,  and  their  generosity  in  offering  its 
services  to  the  nations  generally  would  show  their  interest  in  the 
advancement  of  the  great  cause  of  judicial  settlement.  It  would 
have  the  inestimable  advantage  of  trying  the  experiment  under  the 
most  favorable  conditions,  because  it  is  not  open  to  question  that 
the  eight  great  nations  possess  jurists  worthy  of  the  great  office 
of  international  judges,  and  it  cannot  be  doubted  that  the  gravity 
of  the  experiment  and  the  importance  of  the  interests  involved 
would  compel  the  appointment  of  competent  judges,  for  the  con- 
tracting nations  would  not  consider  for  a moment  the  reference 
of  their  mutual  disputes  to  an  incompetent  or  inferior  tribunal. 
This  proposition  is  based  upon  the  fact  that  the  larger  powers 
are  convinced  of  the  utility  of  such  a court,  and  the  fact  that  the 
original  proposers  are  still  interested  in  its  institution  leads  to  the 
conclusion  that  the  other  large  powers  with  which  their  relations 
are  close,  intimate  and  confidential  would,  without  urging  or  per- 
suasion, co-operate  with  them  in  the  establishment  of  the  court. 

It  is  believed  that  the  institution  and  successful  operation  of 
the  court  would  not  merely  justify  the  powers  in  establishing  it, 
but  would  convince  non-contracting  powers  of  its  utility,  which 


INTERNATIONAL  COURT  OF  JUSTICE  51 

perhaps  hesitate  to  pledge  themselves  to  judicial  settlement.  Theory 
is  one  thing;  practice  is  another,  and  practical  demonstration  is, 
with  nations  as  with  individuals,  more  conclusive  than  theoretical 
exposition.  A few  cases  decided  by  the  court  according  to  judicial 
standards  would  convince  the  doubting,  just  as  the  scruples  of  St. 
Thomas  were  removed. 

So  far  a court  of  eight  has  been  suggested,  but  it  is  self-evident 
that  a ninth  should  be  invited  to  participate.  It  would  indeed  be  a 
sorry  feast  if  the  host  were  overlooked.  As  the  seat  of  the  proposed 
court — and  indeed  as  the  centre  of  internationalism — Holland  has 
claims  which  cannot  be  gainsaid,  and  in  all  that  goes  to  make  up 
civilization  it  certainly  stands  on  an  equality  with  the  eight  greater 
powers. 

A proposal  to  give  effect  to  this  suggestion  is  printed  in  the 
appendix. 

If  it  could  properly  be  said  in  1907  at  the  meeting  of  the  Second 
Conference  that  the  time  was  not  ripe  for  the  formation  of  an 
international  court  of  justice  of  a permanent  nature,  composed 
of  judges  chosen  in  advance  of  the  litigation,  this  objection,  how- 
ever weighty  then,  has  lost  its  force  in  1914.  Publicists  of  the 
greatest  standing  and  influence  have  confessed  their  faith  in  favor 
of  it,  learned  bodies  and  popular  assemblies  have  advocated  it, 
and  the  American  Society  for  Judicial  Settlement  of  International 
Disputes  has  been  formed  in  the  United  States,  which  numbers 
among  its  members  the  elite  of  the  land.  In  a recent  and  very 
valuable  work  entitled  “ The  Problem  of  an  International  Court  of 
Justice  ” the  well-known  German  publicist.  Dr.  Hans  Wehberg, 
has  stated  at  length  the  advantages  and  difficulties  attending 
the  institution  of  such  a tribunal,  and  has  shown  the  prepon- 
derance of  professional  opinion  in  its  favor.  The  Institute  of 
International  Law,  composed  of  the  leading  publicists  of  the  world, 
at  its  Christiania  session  in  1912  unanimously  declared  for  it,  and 
adopted  the  following  resolution: 

“ While  recognizing  the  great  value  of  the  Court  of  Arbitra- 
tion, instituted  by  the  Peace  Conference  in  1899,  to  international 
justice  and  the  maintenance  of  peace,  the  Institute  of  International 
Law — 

“ In  order  to  facilitate  and  to  hasten  recourse  to  arbitration ; 


52 


THE  STATUS  OF  THE 


to  assure  the  settlement  of  differences  of  a legal  nature  by  arbiters 
representing  the  different  systems  of  legislation  and  of  juris- 
prudence ; 

“ In  order  to  reinforce  the  authority  of  the  tribunals  in  the 
eyes  of  the  representatives  of  the  parties  in  controversy  by  having 
the  members  of  the  tribunal  known  to  them  in  advance,  and  like- 
wise to  increase  the  moral  force  of  the  decision  by  having  it 
rendered  by  a larger  number  and  by  the  authority  of  arbiters 
recognized  by  the  totality  of  the  States; 

“ In  order  to  resolve,  in  case  of  a treaty  of  compulsory  arbitra- 
tion containing  a clause  to  this  effect,  the  doubts  which  might  arise 
as  to  whether  or  not  a particular  controversy  belongs  to  the  category 
of  questions  subject  to  compulsory  arbitration  under  the  treaty; 

“ In  order  to  create  a Court  of  Appeals  for  decisions  rendered 
by  tribunals  constituted  otherwise  than  in  conformity  with  the 
rules  of  the  Hague  Convention,  in  case  the  special  compromis 
should  provide  for  the  possibility  of  such  a revision; 

“ Considers  it  highly  desirable  that  satisfaction  be  given  to 
the  first  voeu  adopted  by  the  Second  Peace  Conference  in  favor 
of  the  establishment  of  a Court  of  Arbitral  Justice.” 

The  Mohonk  Conference  on  International  Arbitration  may  be 
taken  as  the  type  of  a popular  assembly,  although  it  is  composed 
of  chosen  spirits.  Year  after  year  it  has  adopted  resolutions  favor- 
ing the  establishment  of  the  court,  and  at  its  last  session  (May, 
1914)  it  affirmed  its  previous  action  by  the  following  resolution : 

“ We  recommend  that  in  addition  to  the  present  Permanent 
Court  of  Arbitration  at  The  Hague,  as  established  under  the 
conventions  of  1899  I907>  there  be  established  as  soon  as 

practicable,  among  such  powers  as  may  agree  thereto,  a court  with 
a determinate  personnel,  as  advised  by  the  Second  Hague  Con- 
ference.” 

The  movement  in  favor  of  judicial  settlement  is  more  fortunate 
than  most  reforms,  for  their  defense  is  ordinarily  entrusted  to 
weak  hands  and  their  partisans  are  frequently  regarded  as  dreamers 
of  dreams  and  as  men  without  experience  in  the  actual  conduct  of 
affairs.  In  the  present  instance  the  proposal  for  the  establishment 
of  an  international  court  of  justice  was  made  by  no  less  a person 
than  Elihu  Root,  when  Secretary  of  State,  and  as  a Senator  of  the 


INTERNATIONAL  COURT  OF  JUSTICE 


53 


United  States  he  still  champions  the  cause  which  he  created.  We 
may,  if  we  please,  shrug  our  shoulders  at  resolutions  of  scientific 
societies  such  as  the  Institute  of  International  Law,  or  of  popular 
assemblies  such  as  the  Mohonk  Conference,  but  a man  must  be  very 
sure  of  himself  who  would  endeavor  to  dispute  the  following 
weighty  words  spoken  by  Mr.  Root  at  the  opening  meeting  of  the 
American  Society  for  Judicial  Settlement  of  International  Disputes 
in  1910: 

“ But  there  are  some  difficulties  about  arbitration — practical 
difficulties  in  the  way  of  settling  questions.  I have  said  many  times 
and  in  many  places  that  I do  not  think  the  difficulty  that  stands 
in  the  way  of  arbitration  to-day  is  an  unwillingness  on  the  part  of 
the  civilized  nations  of  the  earth  to  submit  their  disputes  to  im- 
partial decision.  I think  the  difficulty  is  a doubt  on  the  part  of 
civilized  nations  as  to  getting  an  impartial  decision.  And  that 
doubt  arises  from  some  characteristics  of  arbitral  tribunals,  which 
are  very  difficult  to  avoid. 

“ In  the  first  place,  these  tribunals  are  ordinarily  made  up  by 
selecting  publicists,  men  of  public  affairs,  great  civil  servants, 
members  of  the  foreign  offices,  men  trained  to  diplomacy;  and  the 
inevitable  tendency  is,  and  the  result  often  has  been,  in  the  majority 
of  cases,  that  the  arbitral  tribunal  simply  substitutes  itself  for 
the  negotiators  of  the  two  parties,  and  negotiates  a settlement. 
Well,  that  is  quite  a different  thing  from  submitting  your 
views  of  right  and  wrong,  your  views  of  the  facts  and  the  law  on 
which  you  base  your  claims  to  right,  to  the  decision  of  a tribunal, 
of  a court.  It  is  merely  handing  over  your  interests  to  somebody 
to  negotiate  for  you;  and  there  is  a very  widespread  reluctance 
to  do  that  in  regard  to  many  cases ; and  the  nearer  the  question  at 
issue  approaches  the  verge  of  the  field  of  policy,  the  stronger  the 
objection  to  doing  that. 

“ Another  difficulty  is  that  the  arbitral  tribunals,  of  course  being 
made  up  largely  of  members  from  other  countries,  the  real  decision 
ordinarily  being  made  by  arbiters  who  come  from  other  countries, 
and  not  from  the  countries  concerned,  questions  have  to  be 
presented  to  men  trained  under  different  systems  of  law,  with  dif- 
ferent ways  of  thinking  and  of  looking  at  matters.  There  is  a very 
wide  difference  between  the  way  in  which  a civil  lawyer  and  a 


54  INTERNATIONAL  COURT  OF  JUSTICE 

common-law  lawyer  will  approach  a subject,  and  it  is  sometimes 
pretty  hard  for  them  to  understand  each  other,  even  though  they 
speak  the  same  language,  while  if  they  speak  different  languages 
it  is  still  more  difficult. 

“ Another  difficulty  is  that  a large  part  of  the  rules  of  inter- 
national law  are  still  vague  and  rmdetermined,  and  upon  many  of 
them,  and  especially  upon  those  out  of  which  controversy  is  most 
likely  to  arise,  different  countries  take  different  views  as  to  what 
the  law  is  and  ought  to  be.  And  no  one  can  tell  how  one  of  these 
extemporized  tribunals,  picked  at  haphazard,  or  upon  the  best 
information  the  negotiators  of  two  countries  can  get — no  one  can 
tell  what  views  they  are  going  to  take  about  questions  of  inter- 
national law,  or  how  they  are  going  to  approach  subjects  and  deal 
with  them. 

“ Now  it  has  seemed  to  me  very  clear  that  in  view  of  these 
practical  difficulties  standing  in  the  way  of  our  present  system  of 
arbitration,  the  next  step  by  which  the  system  of  peaceable  settle- 
ment of  international  disputes  can  be  advanced,  the  pathway  along 
which  it  can  be  pressed  forward  to  universal  acceptance  and  use, 
is  to  substitute  for  the  kind  of  arbitration  we  have  now,  in  which 
the  arbitrators  proceed  according  to  their  ideas  of  diplomatic  obliga- 
tion, real  courts  where  judges,  acting  under  the  sanctity  of  the 
judicial  oath,  pass  upon  the  rights  of  countries,  as  judges  pass  upon 
the  rights  of  individuals,  in  accordance  with  the  facts  as  found 
and  the  law  as  established.  With  such  tribunals,  which  are  con- 
tinuous, and  composed  of  judges  who  make  it  their  life  business, 
you  will  soon  develop  a bench  composed  of  men  who  have  become 
familiar  with  the  ways  in  which  the  people  of  every  country  do 
their  business  and  do  their  thinking,  and  you  will  have  a gradual 
growth  of  definite  rules,  of  fixed  interpretation,  and  of  established 
precedents,  according  to  which  you  may  know  your  case  will  be 
decided. 

“ It  is  with  that  view  that  I have  felt  grateful  to  the  gentlemen 
who  have  been  giving  their  time  and  efforts  to  the  organization 
and  establishment  of  this  Society.  I am  sure  that  it  is  a step  along 
the  scientific  and  practical  method  of  putting  into  operation  all  the 
principles  that  we  have  been  preaching  and  listening  to  for  so  many 
years.  It  is  practical,  and  I believe  it  will  be  effective.” 


APPENDIX  A 


(i)  MR.  CHOATE’S  ADDRESS  ON  THE  AMERICAN 
PROJECT  FOR  A PERMANENT  COURT  OF 
ARBITRAL  JUSTICE,  AUGUST  1,  1907  1 


Mr.  President: 

In  commending  to  the  favorable  consideration  of  the  subcommission  the 
scheme  which  our  delegation  has  embodied  in  a proposition  relative  to  the 
Permanent  Court  of  Arbitration,  I cannot  better  begin  what  I have  to  say  than 
to  quote  a sentence  from  the  letter  of  President  Roosevelt  to  Mr.  Carnegie 
on  the  fifth  of  April  last,  which  was  read  at  the  Peace  Conference  held  at  New 
York.  He  says : 


I hope  to  see  adopted  a general  arbitration  treaty  among  the  nations,  and 
I hope  to  see  the  Hague  Court  greatly  increased  in  power  and  permanency, 
and  the  judges  in  particular  made  permanent  and  given  adequate  salaries  so 
as  to  make  it  increasingly  probable  that  in  each  case  that  may  come  before 
them  they  will  decide  between  the  nations,  great  or  small,  exactly  as  a judge 
within  our  own  limits  decides  between  the  individuals,  great  or  small,  who 
come  before  him.  Doubtless  many  other  matters  will  be  taken  up  at  The 
Hague,  but  it  seems  to  me  that  this  of  a general  arbitration  treaty  is  perhaps 
the  most  important. 


And  our  instructions  are  to  secure,  if  possible,  a plan  by  which  the  judges 
shall  be  so  selected  from  the  different  countries  that  the  different  systems  of 
law  and  procedure  and  the  principal  languages  shall  be  fairly  represented,  and 
that  the  court  shall  be  made  of  such  dignity,  consideration,  and  rank  that  the 
best  and  ablest  jurists  will  accept  appointments  to  it,  and  that  the  whole  world 
will  have  absolute  confidence  in  its  judgments. 

There  can  be  no  doubt,  Mr.  President,  of  the  supreme  importance  of  the 
step  in  advance  which  we  ask  the  conference  to  take  in  developing  and  building 
up,  out  of  the  Permanent  Court  of  Arbitration  created  by  the  conference  of 
1899,  a tribunal  which  shall  conform  to  these  requirements  and  satisfy  a 
universal  demand  which  presses  upon  us  from  all  quarters  of  the  world  for 
the  establishment  of  such  a tribunal.  The  general  cause  of  arbitration  as  a 
substitute  for  wars  in  the  settlement  of  international  differences  has  advanced 
by  leaps  and  bounds  since  the  close  of  the  First  Peace  Conference,  and  nothing- 

’ La  Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Documents 
(ist  Commission,  ist  Subcommission,  August  i,  1907),  Vol.  H,  pp.  309-314 
(327-330). 


55 


56 


THE  STATUS  OF  THE 


more  strongly  demonstrates  the  utility  of  the  great  work  accomplished  by  that 
conference  than  the  general  resort  of  the  nations  to  agreements  for  arbitration 
among  themselves  as  the  sure  means  of  securing  justice  and  peace  and  avoiding 
a resort  to  the  terrible  test  of  war. 

Our  plan,  if  adopted,  will  preserve  and  perpetuate  the  excellent  work  of 
the  First  Conference  and  carry  it  to  its  logical  conclusion.  Following  the 
noble  initiative  of  Lord  Pauncefote,  that  great  and  wise  statesman  who  was 
the  First  Delegate  of  Great  Britain,  whose  persuasive  words  upon  the  subject 
will  never  be  forgotten,  the  First  Conference,  after  establishing  for  all  time 
the  principles  of  arbitration,  created  a tribunal  to  which  all  nations,  whether 
signatory  powers  or  not,  might  voluntarily  resort  for  the  determination  of  all 
arbitrations  upon  which  they  might  agree.  But  one  cannot  read  the  debates 
which  ushered  in  the  taking  of  that  great  step  by  the  First  Conference  without 
realizing  that  it  was  undertaken  by  that  body  as  a new  experiment  and  not 
without  apprehension,  but  with  an  earnest  hope  that  it  would  serve  as  a basis, 
at  least,  of  further  advanced  work  in  the  same  direction  by  a future  conference. 
The  project  was  as  simple  as  the  purpose  of  it  was  grand,  but,  as  Mr.  Asser 
has  well  said  in  his  eloquent  speech,  it  created  a court  in  name  only  by  furnishing 
a list  of  jurists  and  other  men  of  skill  in  international  law  from  whom  the 
parties  to  each  litigation  might  select  judges  to  determine  the  case,  who  should 
sit  at  The  Hague  according  to  machinery  provided  for  the  purpose,  and  proceed 
by  certain  prescribed  methods,  if  no  others  were  agreed  upon  by  the  parties. 

We  have  with  us,  I believe,  as  members  of  the  present  conference,  some 
seventeen  members  of  the  former  conference  who  participated  in  that  great 
work,  and  about  an  equal  number  of  the  judges  whose  names  were  placed 
upon  the  list  by  the  various  nations  in  conformity  with  the  power  given  them 
by  the  convention  of  1899.  And  our  present  effort  is  by  no  means  to  belittle 
or  detract  from  their  work,  but  to  build  upon  it  a still  nobler  and  more  com- 
manding structure,  and  it  is  their  support  that  we  would  seek  especially  to 
enlist  in  this  new  undertaking. 

We  do  not  err,  Mr.  President,  in  saying  that  the  work  of  the  First  Conference 
in  this  regard,  noble  and  far-reaching  as  it  was,  has  not  proved  entirely  complete 
and  adequate  to  meet  the  progressive  demands  of  the  nations,  and  to  draw 
to  the  Hague  Tribunal  for  decision  any  great  part  of  the  arbitrations  that 
have  been  agreed  upon ; and  that  in  the  eight  years  of  its  existence  only  four 
cases  have  been  submitted  to  it,  and  of  the  sixty  judges,  more  or  less,  who 
were  named  as  members  of  the  court  at  least  two-thirds  have  not,  as  yet,  been 
called  upon  for  any  service.  It  is  not  easy,  or  perhaps  desirable,  at  this  stage 
of  the  discussion  to  analyze  all  the  causes  of  the  failure  of  a general  or  frequent 
resort  by  the  nations  to  the  Hague  Tribunal,  but  a few  of  them  are  so  obvious 
that  they  may  be  properly  suggested.  Certainly  it  was  for  no  lack  of  adequate 
and  competent  and  distinguished  judges,  for  the  services  they  have  performed 
in  the  four  cases  which  they  have  considered  have  been  of  the  highest  character, 
and  it  is  out  of  those  very  judges  that  we  propose  to  constitute  our  new 
proposed  court. 

I am  inclined  to  think  that  one  of  the  causes  which  have  prevented  a more 
frequent  resort  of  nations  to  the  Hague  Tribunal,  especially  in  cases  of  ordinary 
or  minor  importance,  has  been  the  expensiveness  of  a case  brought  there;  and 
it  should  be  one  element  of  reform  that  the  expense  of  the  court  itself,  including 


INTERNATIONAL  COURT  OF  JUSTICE  57 

the  salaries  of  the  judges,  shall  be  borne  at  the  common  expense  of  all  the 
signatory  powers,  so  as  to  furnish  to  the  suitors  a court  at  least  free  of  expense 
to  them,  as  is  the  case  with  suitors  of  all  nations  in  their  national  courts. 

The  fact  that  there  was  nothing  permanent  or  continuous  or  connected  in 
the  sessions  of  the  court,  or  in  the  adjudication  of  the  cases  submitted  to  it, 
has  been  an  obvious  source  of  weakness  and  want  of  prestige  in  the  tribunal. 
Each  trial  it  had  before  it  has  been  wholly  independent  of  every  other,  and 
its  occasional  utterances,  widely  distant  in  point  of  time  and  disconnected  in 
subject-matter,  have  not  gone  far  towards  constituting  a consistent  body  of 
international  law  or  of  valuable  contributions  to  international  law,  which  ought 
to  emanate  from  an  international  tribunal  representing  the  power  and  might 
of  all  the  nations.  In  fact,  it  has  thus  far  been  a court  only  in  name — a frame- 
work for  the  selection  of  referees  for  each  particular  case,  never  consisting 
of  the  same  judges.  It  has  done  great  good  as  far  as  it  has  been  permitted 
to  work  at  all,  but  our  effort  should  be  to  try  to  make  a tribunal  which  shall 
be  the  medium  of  vastly  greater  and  constantly  increasing  benefit  to  the  nations 
and  to  mankind  at  large. 

Let  us  then  seek  to  develop  out  of  it  a permanent  court,  which  shall  hold 
regular  and  continuous  sessions,  which  shall  consist  of  the  same  judges,  which 
shall  pay  due  heed  to  its  own  decisions,  which  shall  speak  with  the  authority 
of  the  united  voice  of  the  nations,  and  gradually  build  up  a system  of  inter- 
national law,  definite  and  precisej  which  shall  command  the  approval  and 
regulate  the  conduct  of  the  nations.  By  such  a step  in  advance  we  shall  justify 
the  confidence  which  has  been  placed  in  us  and  shall  make  the  work  of  this 
Second  Conference  worthy  of  comparison  with  that  of  the  conference  of  1899. 

We  have  not,  Mr.  President,  in  the  proposition  which  we  have  offered, 
attempted  even  to  sketch  the  details  of  the  constitution  and  powers  and  character 
of  our  proposed  court.  We  have  not  thought  it  possible  that  one  nation  could 
of  itself  prescribe  or  even  suggest  such  details,  but  that  they  should  be  the 
result  of  consultation  and  conference  among  all  the  nations  represented  in  a 
suitable  committee  to  be  appointed  by  the  president  to  consider  them. 

The  plan  proposed  by  us,  Mr.  President,  does  not  in  the  least  depart  from 
the  voluntary  character  of  the  court  already  established.  No  nation  can  be 
compelled  or  constrained  to  come  before  it,  but  it  will  be  open  for  all  who 
desire  to  settle  their  differences  by  peaceful  methods  and  to  avoid  the  terrible 
consequences  and  chances  of  war. 

In  the  first  article  of  our  project  we  suggest  that  such  a permanent  court 
of  arbitration  ought  to  be  constituted ; and  that  is  the  great  question  of  principle 
to  be  first  decided.  And  to  that  end  we  submit  that  it  should  be  composed  of 
not  more  than  seventeen  judges,  of  whom  nine  should  be  a quorum — men 
who  have  enjoyed  the  highest  moral  consideration  and  a recognized  competence 
in  questions  of  international  law;  that  they  shall  be  designated  and  elected 
by  the  nations,  but  in  a way  prescribed  by  this  entire  conference,  so  that  all 
the  nations,  great  and  small,  shall  have  a voice  in  designating  the  manner  of 
their  choice;  and  that  they  shall  be  chosen  from  so  many  different  countries 
as  fairly  to  represent  all  the  different  systems  of  existing  law  and  procedure, 
all  the  principal  languages  of  the  world,  all  the  great  human  interests,  and  a 
widely  distributed  geographical  character;  that  they  shall  be  named  for  a 
certain  number  of  years,  to  be  decided  by  the  conference,  and  shall  hold  their 


58 


THE  STATUS  OF  THE 


offices  until  their  respective  successors,  to  be  chosen  as  the  conference  shall 
prescribe,  shall  have  accepted  and  qualified. 

Our  second  article,  Mr.  President,  provides  that  our  Permanent  Court  shall 
sit  annually  at  The  Hague  upon  a specified  date,  the  same  date  in  each  year, 
to  be  fixed  by  the  conference,  and  that  they  shall  remain  in  session  as  long 
as  the  necessity  of  the  business  that  shall  come  before  them  may  require;  that 
they  shall  appoint  their  own  officers  and,  except  as  this  or  the  preceding  con- 
ference prescribes,  shall  regulate  their  own  procedure ; that  every  decision 
of  the  court  shall  be  by  a majority  of  voices,  and  that  nine  members  shall 
constitute  a quorum,  although  this  number  is  subject  to  the  decision  of  the 
conference. 

We  desire  that  the  judges  shall  be  of  equal  rank,  shall  enjoy  diplomatic 
immunity,  and  shall  receive  a salary,  to  be  paid  out  of  the  common  purse  of 
the  nations,  sufficient  to  justify  them  in  devoting  to  the  consideration  of  the 
business  of  the  court  all  the  time  that  shall  be  necessary. 

By  the  third  article  we  express  our  preference  that  in  no  case,  unless  the 
parties  otherwise  agree,  shall  any  judge  of  the  court  take  part  in  the  considera- 
tion or  decision  of  any  matter  coming  before  the  court  to  which  his  own  nation 
shall  be  a party.  In  other  words,  Mr.  President,  we  would  have  it  in  all  respects 
strictly  a court  of  justice,  and  not  partake  in  the  least  of  the  nature  of  a joint 
commission. 

By  the  fourth  article  we  would  make  the  jurisdiction  of  this  Permanent 
Court  large  enough  to  embrace  the  hearing  and  decision  of  all  cases  involving 
differences  of  an  international  character  between  sovereign  states,  which  they 
had  not  been  able  to  settle  by  diplomatic  methods,  and  which  shall  be  submitted 
to  it  by  an  agreement  of  the  parties;  that  it  shall  have  not  only  original  juris- 
diction, but  that  room  shall  be  given  to  it  to  entertain  appeals,  if  it  should  be 
thought  advisable,  from  other  tribunals,  and  to  determine  the  relative  rights, 
duties,  or  obligations  arising  out  of  the  sentences  or  decrees  of  commissions 
of  inquiry  or  specially  constituted  tribunals  of  arbitration. 

Our  fifth  article  provides  that  the  judges  of  the  court  shall  be  competent 
to  act  as  judges  upon  commissions  of  inquiry  or  special  arbitration  tribunals, 
but  in  that  case,  of  course,  not  to  sit  in  review  of  their  own  decisions,  and 
that  the  court  shall  have  power  to  entertain  and  dispose  of  any  international 
controversy  that  shall  be  submitted  to  it  by  the  powers. 

And  finally,  by  Article  6,  that  its  membership  shall  be  made  up  as  far  as 
possible  out  of  the  membership  of  the  existing  court,  from  those  judges  who 
have  been  or  shall  be  named  by  the  parties  now  constituting  the  present  con- 
ference, in  conformity  with  the  rules  which  this  conference  shall  finally  prescribe. 

Mr.  President,  with  all  the  earnestness  of  which  we  are  capable,  and  with 
a solemn  sense  of  the  obligations  and  responsibilities  resting  upon  us  as  members 
of  this  conference,  which  in  a certain  sense  holds  in  its  hand  the  fate  and 
fortunes  of  the  nations,  we  commend  the  scheme  which  we  have  thus  proposed 
to  the  careful  consideration  of  our  sister  nations.  We  cherish  no  pride  of 
opinion  as  to  any  point  or  feature  that  we  have  suggested  in  regard  to  the 
constitution  and  powers  of  the  court.  We  are  ready  to  yield  any  or  all  of 
them  for  the  sake  of  harmony,  but  we  do  insist  that  this  great  gathering  of 
the  representatives  of  all  the  nations  will  be  false  to  its  trust,  and  will  deserve 
that  the  seal  of  condemnation  shall  be  set  upon  its  work,  if  it  does  not  strain 


INTERNATIONAL  COURT  OF  JUSTICE  59 

every  nerve  to  bring  about  the  establishment  of  some  such  great  and  permanent 
tribunal  which  shall,  by  its  supreme  authority,  compel  the  attention  and  defer- 
ence of  the  nations  that  we  represent,  and  bring  to  final  adjudication  before 
it  differences  of  an  international  character  that  shall  arise  between  them,  and 
whose  decisions  shall  be  appealed  to  as  time  progresses  for  the  determination 
of  all  questions  of  international  law. 

Let  us,  then,  Mr.  President,  make  a supreme  effort  to  attain  not  harmony 
only,  but  complete  unanimity  in  the  accomplishment  of  this  great  measure, 
which  will  contribute  more  than  anything  else  we  can  do  to  establish  justice 
and  peace  on  everlasting  foundations. 

The  commission  will  distinctly  understand  that  our  proposed  court,  if  estab- 
lished, will  not  destroy  but  will  only  supplement  the  existing  court,  established 
by  the  conference  of  1899,  and  that  any  nations  who  desire  it  may  still  resort 
to  the  method  of  selecting  arbitrators  there  provided. 

Gentlemen,  it  is  now  six  weeks  since  we  first  assembled.  There  is  certainly 
no  time  to  lose.  We  have  done  much  to  regulate  war,  but  very  little  to  prevent 
it.  Let  us  unite  on  this  great  pacific  measure  and  satisfy  the  world  that  this 
Second  Conference  really  intends  that  hereafter  peace  and  not  war  shall  be 
the  normal  condition  of  civilized  nations. 


6o 


THE  STATUS  OF  THE 


(2)  MR.  SCOTT’S  ADDRESS  ON  THE  ELEMENTS  ENTERING  INTO 
THE  COMPOSITION  OF  AN  INTERNATIONAL  COURT 
OF  ARBITRAL  JUSTICE,  AUGUST  1,  1907.J 

In  opening  the  National  Arbitration  and  Peace  Congress  in  the  city  of  New 
York,  on  the  fifteenth  day  of  April,  1907,  the  Hon.  Elihu  Root,  Secretary  of 
State  for  the  United  States  of  America,  expressed,  in  a few  apt  paragraphs, 
the  causes  which  have  worked  against  general  arbitration  and  the  reasons 
which  have  prevented  a more  frequent  recourse  to  the  Permanent  Tribunal  of 
Arbitration  at  The  Hague.  I therefore  beg  to  quote  the  following  passages 
from  his  address : 

It  has  seemed  to  me  that  the  great  obstacle  to  the  universal  adoption  of 
arbitration  is  not  the  unwillingness  of  civilized  nations  to  submit  their  disputes 
to  the  decision  of  an  impartial  tribunal ; it  is  rather  an  apprehension  that  the 
tribunal  selected  will  not  be  impartial.  In  a dispatch  to  Sir  Julian  Pauncefote, 
dated  March  5,  1896,  Lord  Salisbury  stated  the  difficulty.  He  said  that 

“If  the  matter  in  controversy  is  important,  so  that  defeat  is  a serious  blow 
to  the  credit  or  the  power  of  the  litigant  who  is  worsted,  that  interest  becomes 
a more  or  less  keen  partisanship.  According  to  their  sympathies,  men  wish 
for  the  victory  of  one  side  or  another.  Such  conflicting  sympathies  interfered 
most  formidably  with  the  choice  of  an  impartial  arbitrator.  It  would  be  too 
invidious  to  specify  the  various  forms  of  bias  by  which,  in  any  important  con- 
troversy between  two  great  powers,  the  other  members  of  the  commonwealth 
of  nations  are  visibly  affected.  In  the  existing  condition  of  international  senti- 
ment each  great  power  could  point  to  nations  whose  admission  to  any  jury, 
by  whom  its  interests  were  to  be  tried,  it  would  be  bound  to  challenge ; and 
in  a litigation  between  two  great  powers  the  rival  challenges  would  pretty  well 
exhaust  the  catalogue  of  the  nations  from  which  competent  and  suitable  arbiters 
could  be  drawn.  It  would  be  easy,  but  scarcely  decorous,  to  illustrate  the 
statement  by  examples.  They  will  occur  to  any  one’s  mind  who  attempts  to 
construct  a panel  of  nations  capable  of  providing  competent  arbitrators,  and 
will  consider  how  many  of  them  would  command  equal  confidence  from  any 
two  litigating  powers. 

“ This  is  the  difficulty  which  stands  in  the  way  of  unrestricted  arbitration. 
By  whatever  plan  the  tribunal  is  selected,  the  end  of  it  must  be  that  issues  in 
which  the  litigant  states  are  most  deeply  interested  will  be  decided  by  the  will 
of  one  man,  and  that  man  a foreigner.  He  has  no  jury  to  find  his  facts;  he 
has  no  court  of  appeals  to  correct  his  law;  and  he  is  sure  to  be  credited,  justly 
or  not,  with  a leaning  to  one  litigant  or  the  other.’’ 

The  feeling  which  Lord  Salisbury  so  well  expressed  is,  I think,  the  great 
stumbling-block  in  the  way  of  arbitration.  The  essential  fact  which  supports 
that  feeling  is  that  arbitration  too  often  acts  diplomatically  rather  than  judicially; 
they  consider  themselves  as  belonging  to  diplomacy  rather  than  to  jurisprudence; 
they  measure  their  responsibility  and  their  duty  by  the  traditions,  the  sentiments, 
and  the  sense  of  honorable  obligation  which  has  grown  up  in  centuries  of 
diplomatic  intercourse,  rather  than  by  the  traditions,  the  sentiments,  and  the 
sense  of  honorable  obligation  which  characterizes  the  judicial  department  of 
civilized  nations.  Instead  of  the  sense  of  responsibility  for  impartial  judgment, 
which  weighs  upon  the  judicial  officers  of  every  civilized  country,  and  which 
is  enforced  by  the  honor  and  self-respect  of  every  upright  judge,  an  inter- 
national arbitration  is  often  regarded  as  an  occasion  for  diplomatic  adjustment. 
Granting  that  the  diplomats  who  are  engaged  in  an  arbitration  have  the  purest 
motives;  that  they  act  in  accordance  with  the  policy  they  deem  to  be  best 

* La  Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Documents 
(ist  Commission,  ist  Subcommission,  August  i,  1907),  Vol.  H,  pp.  313-321. 


INTERNATIONAL  COURT  OF  JUSTICE  6i 

for  the  nations  concerned  in  the  controversy;  assuming  that  they  thrust  aside 
entirely  in  their  consideration  any  interests  which  their  own  countries  may 
have  in  the  controversy  or  in  securing  the  favor  or  averting  the  displeasure 
of  the  parties  before  them,  nevertheless  it  remains  that  in  such  an  arbitration 
the  litigant  nations  find  that  questions  of  policy,  and  not  simple  questions  of 
fact  and  law,  are  submitted  to  alien  determination,  and  an  appreciable  part 
of  that  sovereignty  which  it  is  the  function  of  every  nation  to  exercise  for 
itself  in  determining  its  own  policy  is  transferred  to  the  arbitrators.  . . . 

What  we  need  for  the  further  development  of  arbitration  is  the  substitution 
of  judicial  action  for  diplomatic  action,  the  substitution  of  judicial  sense  of 
responsibility  for  diplomatic  sense  of  responsibility.  We  need  for  arbitrators 
not  distinguished  public  men  concerned  in  all  the  international  questions  of 
the  day,  but  judges  who  will  be  interested  only  in  the  question  appearing  upon 
the  record  before  them.  Plainly  this  end  is  to  be  attained  by  the  establishment 
of  a court  of  permanent  judges,  who  will  have  no  other  occupation  and  no 
other  interest  but  the  exercise  of  the  judicial  faculty  under  the  sanction  of 
that  high  sense  of  responsibility  which  has  made  the  courts  of  justice  in  the 
civilized  nations  of  the  world  the  exponents  of  all  that  is  best  and  noblest  in 
modern  civilization. 

It  is  a familiar  doctrine  that  the  shoemaker  should  stick  to  his  last  and  that 
he  should  not  go  beyond  it.  It  should  be  an  equally  familiar  doctrine  that 
lawyers  and  jurists  of  reputation  are  preeminently  qualified  to  deal  with  ques- 
tions relating  to  the  organization  and  development  of  a court  of  justice.  The 
opinion  is  not  expressed,  either  directly  or  indirectly,  that  the  layman  should 
not  have  views  upon  this  subject,  and  express  them,  but  it  would  seem  to  be 
unarguable  that  the  advice  of  the  bench  and  the  bar  should  be  determinative 
in  all  questions  relating  to  courts  of  justice. 

The  plan  which  the  American  delegation  has  had  the  honor  to  lay  before 
the  conference  is  the  result  of  direct  instructions  from  the  Secretary  of  State, 
who  is  not  only  a lawyer  of  distinction  but  a leader  of  the  bar.  The  explanation 
of  the  general  principles  relating  to  the  establishment  of  a permanent  court 
comes  from  our  distinguished  First  Delegate,  who  led  the  American  bar  as 
long  as  he  chose  to  remain  in  active  practice. 

It  would  seem,  therefore,  that  a project  outlined  by  one  practitioner  of 
distinction,  and  commended  to  your  careful  consideration  by  another  no  less 
distinguished  member  of  the  profession,  must  possess  qualities  which  commend 
it  to  the  consideration  of  the  profession  at  large. 

The  American  people,  rightly  or  wrongly,  are  regarded  as  preeminently 
practical,  and  a project  which  commands  their  unanimous  support,  because  it 
expresses  their  innermost  desire,  must  be  practical  in  the  broadest  sense  of 
the  term.  But  we  believe  that  the  project  for  the  establishment  of  a permanent 
court  will  not  merely  commend  itself  to  practitioners,  but  that  it  is  susceptible 
of  theoretical  defense. 

Before  entering  upon  the  detailed  exposition  of  the  project  and  presenting 
the  fundamental  principles  underlying  the  proposed  permanent  court,  I desire 
to  call  attention  to  the  present  court  and  to  show  its  strength  and  its  weakness, 
in  order  that  it  may  appear  that  our  project  develops  the  strength  on  the  one 
hand  and  eliminates  the  weakness  on  the  other. 

The  strength  of  the  work  of  1899  hes  in  the  idea  of  a court  for  the  settle- 
ment of  international  differences ; its  weakness  consists  in  the  fact  that  the 
machinery  provided  is  inadequate  for  its  realization. 

I quote  the  following  articles  from  the  convention  of  1899: 


62 


THE  STATUS  OF  THE 


Article  15.  International  arbitration  has  for  its  object  the  settlement  of 
differences  between  states  by  judges  of  their  own  choice,  and  on  the  basis  of 
respect  for  law. 

Article  16.  In  questions  of  a legal  nature,  especially  in  the  interpretation 
or  application  of  international  conventions,  arbitration  is  recognized  by  the 
signatory  powers  as  the  most  effective,  and  at  the  same  time  the  most  equitable, 
means  of  settling  disputes  which  diplomacy  has  failed  to  settle. 

Article  20.  With  the  object  of  facilitating  immediate  recourse  to  arbitration 
for  international  differences  which  it  has  not  been  possible  to  settle  by  diplomacy, 
the  signatory  powers  undertake  to  organize  a permanent  court  of  arbitration, 
accessible  at  all  times,  and  operating,  unless  otherwise  stipulated  by  the  parties, 
in  accordance  with  the  rules  of  procedure  inserted  in  the  present  convention. 

The  intent  of  the  framers  of  this  remarkable  convention  is  evident:  Arbitra- 
tion is  to  take  up  the  task  of  settlement  where  diplomacy  has  failed,  and  reason 
thus  thrusts  itself  between  negotiation  and  the  sword. 

The  signatory  powers  agreed  to  organize  a permanent  court  of  arbitration, 
and  this  court,  so  organized,  was  to  be  accessible  at  all  times.  It  is  common 
knowledge  that  no  permanent  court  exists  because  no  permanent  court  ever 
was  established  under  the  convention,  and  it  necessarily  follows  that  if  a 
permanent  court  does  not  exist,  it  is  not  accessible  at  all  times,  or  indeed  at 
any  time.  The  most  that  can  be  said  is  that  the  signatory  powers  furnished 
a list  of  judges  from  which,  as  occasion  required,  a temporary  tribunal  of 
arbitration  might  be  composed. 

It  would  further  appear  that  the  judges  so  appointed  by  the  signatory  powers 
were  not  necessarily  judges  in  the  legal  sense  of  the  word,  but  might  be  jurists, 
negotiators,  diplomatists,  or  politicians  specially  detailed.  In  a word,  the 
Permanent  Court  is  not  permanent  because  it  is  not  composed  of  permanent 
judges;  it  is  not  accessible  because  it  has  to  be  constituted  for  each  case;  it 
is  not  a court  because  it  is  not  composed  of  judges. 

A careful  examination  of  the  sections  previously  quoted  shows  beyond 
peradventure  that  the  framers  contemplated  the  establishment  of  a court  of 
justice  to  which  differences  of  an  international  nature  might  be  submitted 
for  judicial  consideration  and  decision. 

Article  15  speaks  of  “judges  of  their  choice,”  and  indicates  in  no  uncertain 
measure  that  the  decision  is  to  be  based  upon  “ respect  of  law.”  Article  16 
lays  stress  upon  questions  of  a judicial  nature  and  declares  that  arbitration 
is  recognized  as  the  most  efficacious  and  the  most  equitable  method  of  settling 
conflicts  of  this  nature. 

It  requires  neither  argument  nor  intellectual  acumen  to  discover  the  intent 
of  the  convention  in  the  wording  and  in  the  spirit  of  the  act  itself. 

To  decide  as  a judge,  and  according  to  law,  it  is  evident  that  a court  should 
be  constituted,  and  it  is  also  evident  that  the  court  should  sit  as  a judicial, 
not  as  a diplomatic  or  political,  tribunal.  Questions  of  special  national  interest 
should  be  excluded  because  the  intent  clearly  is  to  decide  a controversy  not 
by  national  law  but  by  international  law.  A court  is  not  a branch  of  the  foreign 
office,  nor  is  it  a chancellery.  Questions  of  a political  nature  should  likewise 
be  excluded,  for  a court  is  neither  a deliberative  nor  a legislative  assembly.  It 
neither  makes  laws  nor  determines  a policy.  Its  supreme  function  is  to  interpret 
and  to  apply  the  law  to  a concrete  case. 

The  court,  therefore,  is  a judicial  body  composed  of  judges  whose  duty  it 


INTERNATIONAL  COURT  OF  JUSTICE  63 

is  to  examine  the  case  presented,  to  weigh  evidence,  and  thus  establish  the 
facts  involved,  and  to  the  facts  thus  found  to  apply  a principle  of  law,  thus 
forming  the  judgment.  It  follows,  then,  that  only  questions  capable  of  judicial 
treatment  should  be  submitted,  and  that  the  duty  of  the  judge  should  be 
limited  to  the  formation  of  judgments.  The  desideratum  is  that  a law  and 
its  interpretation  should  be  certain,  and  certainty  of  judgment  is  possible  only 
when  strictly  judicial  questions  are  presented  to  the  court.  Upon  a given  state 
of  facts  you  may  predicate  a judgment.  If  special  interests  be  introduced,  if 
political  questions  be  involved,  the  judgment  of  a court  must  be  as  involved 
and  confused  as  the  special  interests  and  political  questions. 

In  stating  boldly  that  the  court  should  not  deal  with  questions  of  special 
national  interest,  nor  with  questions  of  national  policy,  and  in  expressing  the 
opinion  that  judges  should  decide  according  to  the  law  as  judges,  not  as 
negotiators  or  diplomats,  it  is  not  meant  to  suggest  that  experience  in  political 
or  diplomatic  life  would  disqualify  a judge  for  the  performance  of  judicial 
duties.  As  the  politician  deals  with  political  questions,  he  is  clearly  out  of 
place  in  a court  of  justice,  although  a broad  experience  in  political  affairs  may 
strengthen  the  judgment  of  the  individual  judge  and  thus  enhance  his  efficiency. 
The  diplomat,  as  such,  is  likewise  out  of  place  in  a court  of  justice,  because 
we  do  not  wish  to  weigh  the  claim  of  one  against  the  other  and  strike  a balance. 
A compromise  is  out  of  place,  and  negotiations  are  excluded.  Experience,  how- 
ever, in  diplomatic  life  is  of  value,  indeed  of  great  value,  but  it  can  only  enlarge 
the  view  and  thus  increase  the  usefulness  of  the  judge  individually.  Political 
experience  and  diplomatic  training  cannot  make  up  for  the  lack  of  the  judicial 
mind  and  the  legal  way  of  thought. 

It  is  difficult  to  conceive  of  a court  of  justice  without  judges  trained  in  the 
administration  of  justice.  It  is  difficult — indeed  it  is  well-nigh  impossible — to 
think  of  a court  without  at  one  and  the  same  time  having  in  mind  the  juris- 
diction of  the  court.  An  international  court  does  not  compete  with  a national 
court.  The  questions  submitted  to  it  are  not  of  a national  or  municipal  character. 
They  are  of  an  international  character,  to  be  determined  according  to  inter- 
national equity  and  international  law.  It  necessarily  follows  that  the  jurisdiction 
of  such  a court  would  be  different  from  the  jurisdiction  of  a national  court. 
The  one  point  in  common  is  that  each  should  have  a certain  sphere  of  juris- 
diction if  it  is  to  function  as  a court.  In  what,  then,  may  the  jurisdiction  of 
an  international  court  consist?  Clearly  it  can  have  no  original  jurisdiction. 
Its  jurisdiction  must  be  conferred  upon  it  specifically,  for  when  created  it  is 
as  powerless  and  helpless  as  the  newborn  babe.  The  jurisdiction  must  be 
conferred  upon  it  expressly,  and  it  would  seem  that  this  may  happen  in  several 
ways.  First,  the  signatory  powers  may  conclude  a general  treaty  of  arbitration 
and  may  agree  that  all  differences  of  an  international  nature  shall  be  considered. 
Or,  second,  if  the  signatory  powers  do  not  conclude  a general  agreement,  the 
positive  jurisdiction  of  the  court  may  be  based  upon  the  several  treaties  of 
arbitration  already  concluded  between  the  nations. 

In  either  case  the  court  will  be  clothed  with  a certain  jurisdiction;  for,  as 
the  powers  have  agreed  collectively  or  singly  to  refer  certain  matters  to  the 
Permanent  Court,  it  follows  that  the  court  possesses  the  competence  to  examine 
these.  In  a word,  the  court  possesses  obligatory  jurisdiction  in  certain  defined 
and  ascertained  cases. 


.64 


THE  STATUS  OF  THE 


But  it  may  well  happen  that  nations  may,  in  the  absence  of  a treaty  of 
arbitration,  be  willing  to  submit  special  differences  arising  between  them  to 
the  judgment  and  determination  of  the  court.  As  the  jurisdiction  in  such  cases 
would  be  occasional,  and  as  it  would  depend  wholly  upon  the  volition  of  the 
parties  in  controversy,  it  may  be  called  voluntary  or  facultative  jurisdiction. 
It  is  a matter  of  no  great  importance  whether  the  jurisdiction  is  obligatory 
or  whether  it  is  facultative,  provided  only  that  questions  be  submitted  to  the 
court  for  their  determination.  And  it  is  believed  that  particular  questions 
will  be  submitted  to  the  court  as  soon  as  the  court  justifies  its  existence,  and 
that  these  submissions  will  be  more  frequent  in  proportion  as  the  court  wins 
universal  confidence  and  trust.  It  is,  therefore,  no  objection  to  the  court  that 
the  obligatory  jurisdiction  may  be  small,  provided  only  that  the  facultative 
jurisdiction  be  large.  And  it  will,  in  the  nature  of  things,  be  large  if  the 
court  be  permanent,  if  it  be  composed  of  judges,  and  if  the  decisions  of  the 
judges  satisfy  the  judicial  conscience. 

The  very  permanency  of  the  court  will  go  far  to  create  the  confidence  which 
a line  of  carefully  considered  and  authoritative  precedents  will  justify.  For 
it  is  important  that  the  court  and  its  personnel  be  permanent  in  order  that  a 
permanent  body  of  international  doctrine  be  developed.  Each  decision  will 
be  a milestone  in  the  line  of  progress  and  will  forecast  a highly  developed, 
comprehensive,  and  universal  system  of  international  law.  But  to  create  a 
precedent  and  to  secure  its  recognition  it  is  necessary  that  the  decision  itself 
shall  be  impartial,  according  to  the  law  of  the  case,  and  the  surroundings  of 
the  court  should  be  such  as  to  allay  suspicion  of  partiality.  Judges  of  training 
and  experience,  serving  for  years  instead  of  for  a few  weeks,  will  develop 
a judicial  faculty,  even  although  its  presence  be  not  so  marked  at  the  date  of 
appointment.  An  arbiter,  chosen  for  a particular  purpose  by  a particular  gov- 
ernment, after  weighing  his  strength  and  his  weakness,  after  an  examination 
of  his  writings  or  utterances,  may  be  discredited  in  advance  and  doubts  cast 
upon  his  impartiality,  because  it  is  well  known  that  nations  as  well  as  men 
are  inclined  to  appoint  those  favorable,  not  those  unfavorable,  to  their  views. 
There  is,  therefore,  great  danger  that  the  arbiter  be  but  slightly  removed  from 
the  advocate;  whereas  the  judge,  by  virtue  of  his  tenure,  cannot,  in  the  nature 
of  things,  be  exposed  to  this  danger  or  to  this  criticism.  It  is  not  too  much 
to  say,  therefore,  that  the  confidence  which  the  court  may  inspire  will  depend 
as  much  upon  the  permanence  of  tenure  as  upon  the  character  and  attainments 
of  the  individual  judges. 

It  is  probable  that  the  views  already  presented  may  meet  with  general 
acceptance,  but  the  important  question  still  remains,  How  is  this  Permanent 
Court,  composed  of  judges,  to  be  constituted?  No  attempt  is  made  to  disguise 
the  difficulty  and  importance  of  this  question;  for  if  it  were  an  easy  task,  we 
would  not  be  engaged  in  discussing  it  in  this  year  of  grace  1907. 

It  is  obvious  at  the  outstart  that  a court,  to  be  truly  international,  should 
represent  not  only  one  or  many  but  all  nations.  It  is  equally  obvious  that  a 
court  composed  of  a single  representative  from  each  independent  and  sovereign 
nation  would  be  unwieldy.  Forty-five  judges,  sitting  together,  might  compose 
a judicial  assembly;  they  would  not  constitute  a court.  And  our  purpose  is 
to  establish  a court,  not  to  call  into  existence  a judicial  assembly. 


INTERNATIONAL  COURT  OF  JUSTICE  65 

In  international  law  all  states  are  equal.  As  our  great  Chief  Justice  Marshall 
said : 

No  principle  of  general  law  is  more  universally  acknowledged  than  the 
perfect  equality  of  nations.  Russia  and  Geneva  have  equal  rights.  It  results 
from  this  equality  that  no  one  can  rightfully  impose  a rule  on  another.  Each 
legislates  itself,  and  its  legislation  can  operate  on  itself  alone  (The  Antelope, 
1825,  10  Wheaton,  66,  122). 

It  follows,  then,  that  however  desirable  a permanent  court  may  be,  it  cannot 
be  imposed  upon  any  nation.  The  court  can  only  exist  for  this  nation  by 
reason  of  its  express  consent.  If  it  be  said  that  all  states  are  equal,  it  necessarily 
follows  that  the  conception  of  great  and  small  powers  finds  no  place  in  a correct 
system  of  international  law.  It  is  only  when  we  leave  the  realm  of  law  and 
face  brute  force  that  inequality  appears.  It  is  only  when  the  sword  is  thrown 
upon  the  scales  of  justice  that  the  balance  tips;  or,  to  quote  the  fine  words  of 
our  honored  president,  M.  Leon  Bourgeois,  uttered  in  a moment  of  inspiration: 

Gentlemen,  what  is  now  the  rule  among  individual  men  will  hereafter  obtain 
among  nations.  Such  international  institutions  as  these  will  be  the  protection 
of  the  weak  against  the  powerful.  In  the  conflicts  of  brute  force,  where  fighters 
of  flesh  and  with  steel  are  in  line,  we  may  speak  of  great  powers  and  small, 
of  weak  and  of  mighty.  When  swords  are  thrown  in  the  balance,  one  side 
may  easily  outweigh  the  other.  But  in  the  weighing  of  rights  and  ideas  disparity 
ceases,  and  the  rights  of  the  smallest  and  the  weakest  powers  count  as  much 
in  the  scales  as  those  of  the  mightiest. 

In  matters  of  justice  there  can  be  no  distinction,  for  every  state,  be  it  large 
or  small,  has  an  equal  interest  that  justice  be  done.  If,  therefore,  a permanent 
court  be  constructed  upon  the  basis  of  abstract  right,  equality,  and  justice,  it 
would  follow  that  each  state  would  sit,  of  right,  within  an  international  tribunal, 
and  we  will  be  confronted  with  a list  of  judges — with  a panel,  not  a court. 
Recognizing  the  equality  of  right  and  the  equality  of  interest  in  law,  and  giving 
full  effect  to  this  equality  in  the  constitution  of  a permanent  court,  we  must 
yet  find  some  other  principle  upon  which  to  base  it  if  we  wish  to  erect  a small 
court  of  a permanent  nature. 

Fortunately  another  principle  exists.  While  all  states  are  equal  in  inter- 
national law,  and  while  their  interest  in  justice  is  the  same,  or  should  be  the 
same,  there  is  a great  difference  between  nations  considered  from  the  standpoint 
of  material  interests.  And  fortunately  material  interests  are  independent  of 
the  question  of  power,  for  power,  in  the  international  sense  of  the  word,  means 
physical  force,  and  physical  force  is  alien  to  the  conception  of  right.  The 
principle  of  construction  cannot  be  based  upon  the  relative  strength  or  weakness 
of  nations ; but  while  nations  have  an  equal  interest  in  justice  in  the  abstract, 
this  interest  may  manifest  itself  more  frequently  in  the  concrete.  The  interests 
of  a large  and  populous  state  are  widespread,  indeed  universal,  and  complications 
and  differences  are  most  likely  to  arise  where  these  interests  come  into  conflict. 
It  cannot  be  said  that  lawsuits  bear  a mathematical  and  constant  relation  to 
population.  A state  of  thirty  millions  may  not  have  six  times  as  many  lawsuits 
as  a state  of  five  millions,  and  it  is  to  be  hoped  that  this  is  not  so.  But  there 
is  a sensible  relation  between  population,  wealth,  and  industry  on  the  one  hand 
and  lawsuits  on  the  other.  If  we  compare  the  states  of  the  American  Union, 


66 


THE  STATUS  OF  THE 


we  will  see  at  a glance  that  the  law  reports  of  the  state  of  New  York  compared 
with  the  law  reports  of  Rhode  Island  and  Delaware,  our  smallest  states  in 
population  as  well  as  in  size,  show  the  greater  material  interest  in  the  state  of 
New  York  in  courts  of  justice.  Population  and  the  business  necessarily  arising 
and  inseparable  from  population  make  a recourse  to  the  courts  of  justice  in 
New  York  the  rule,  while  in  the  smaller  states  it  would  seem  to  be  the  exception. 
It  follows,  therefore,  in  practice  as  in  theory,  that  the  state  of  New  York  has 
many  more  law  courts  and  infinitely  more  judges,  simply  because  the  needs 
of  the  population  are  in  this  way  met. 

The  foregoing  illustration  would  apply  to  an  international  as  well  as  to  a 
municipal  or  national  court.  The  greater  the  population,  the  greater  the  busi- 
ness ; the  greater  the  business,  the  more  frequent  the  conflict  of  interests 
involving  a recourse  to  a court  of  justice.  An  international  court  would  seem 
to  be  at  the  present  day  as  much  a necessity  as  the  municipal  court  is  a necessity, 
for  international  interests,  in  their  infinite  variety  and  complexity,  would  or 
should  be  referred  to  an  international  court,  just  as  conflicts  arising  wholly 
within  one  jurisdiction  are  referred  to  the  municipal  court  of  the  particular 
nation  in  question.  The  municipal  court  is  created  to  meet  the  national  need. 
An  international  court  should  be  created  and  exist  to  meet  the  international 
need,  and  it  is  not  to  be  expected  that  nations  with  great  material  interests 
will  be  content  to  support  or  accept  an  international  court  which  does  not 
recognize  these  interests,  and  in  which  these  interests  are  not  represented. 
Material  interests  may,  however,  be  very  large  or  may  be  very  small,  and  the 
difficulty  of  estimating  the  value  of  a particular  interest,  and  the  extent  to 
which  it  should  find  representation  in  a court,  would  seem  to  render  it  either 
impossible  or  inexpedient  as  a basis  for  the  constitution  of  an  international  court. 

It  has  been  stated — and  any  geographer  or  gazetteer  will  furnish  the  proof — 
that  material  interests  and  populations  go  hand  in  hand;  that  a large  population 
has,  by  reason  of  its  largeness,  material  needs  which  must  be  satisfied;  that 
industry  and  commerce  spring  up  to  meet  these  needs,  and  in  satisfying  them 
wealth  results.  If,  therefore,  population  draws  to  itself  industry  and  commerce, 
and  if  courts  of  justice,  in  a civil  and  commercial  sense,  are  created  to  resolve 
commercial  or  civic  differences,  it  would  seem  that  population  (which  is  easily 
determinable)  may  be  chosen  as  a basis  of  representation  because  of  the  direct 
relation  existing  between  population  on  the  one  hand  and  industry  and  com- 
merce on  the  other.  Population  is  a natural  principle,  and  a court  of  justice 
based  upon  the  principle  of  population  thus  recognizes  an  actual  and  natural 
principle.  Business  interests  are  at  one  and  the  same  time  likewise  recognized, 
and  justice  is  administered  clearly  and  impartially,  if  only  the  personnel  of  the 
court  be  properly  selected. 

Admitting  that  population  may  be  taken  as  an  element  upon  which  to 
constitute  an  international  court,  it  is  necessary  to  state,  with  clearness  and 
precision,  the  population  which  shall  give  a unit  of  representation.  If  the 
required  population  be  very  small,  it  follows  that  the  membership  of  the  court, 
chosen  in  accordance  with  population,  will  be  very  large;  and,  on  the  other 
hand,  if  a very  high  degree  of  population  be  required,  it  follows  that  the 
membership  of  the  court  will  be  correspondingly  small.  But  whatever  unit 
be  chosen,  no  state,  however  populous,  should  have  more  than  one  member 
in  the  court,  for  a single  member  calls  attention  to  the  existence  of  the  state 


INTERNATIONAL  COURT  OF  JUSTICE  67 

as  a political  unit,  and  represents  at  one  and  the  same  time  its  population, 
industry,  and  commerce. 

It  is,  therefore,  necessary  to  choose  the  golden  mean  in  such  a way  that 
the  membership  of  the  court  shall  not  be  so  large  as  to  make  it  unwieldy,  nor 
so  small  as  to  leave  unrepresented  important  international  interests.  It  seems 
probable  that  a court  composed  of  fifteen  or  sixteen  judges  would  be  manage- 
able, and  adequate  for  all  our  present  international  needs. 

If  it  be  true  that  population  and  material  interests  bear  a sensible  proportion 
to  each  other,  it  follows  that  the  entire  population  of  a country  should  be 
included,  and  that  its  right  to  representation  should  depend  upon  this  combined 
population,  for  it  is  not  merely  the  interests  of  the  home  country,  but  the 
interests  of  the  colonies,  that  come  before  courts  of  justice. 

If  it  be  admitted  that  population  is  a satisfactory  basis  upon  which  to  erect 
a substantial  and  permanent  court  of  arbitration,  it  would  not  follow  that  we 
had  composed  the  court,  although  we  had  taken  a step  toward  it  by  establishing 
approximately  the  number  of  judges  of  the  court.  We  must  determine  the 
law  to  be  enforced.  The  problem  here  is  complicated  by  the  fact  that  many 
systems  of  law  exist  and  that  these  various  systems  must  find  adequate  repre- 
sentation. As  a rule,  a single  system  of  law  obtains  in  a municipal  court; 
another  system  obtains  in  another  court.  These  two  systems,  administered  in 
one  and  the  same  court,  would  not  make  the  tribunal  a court  of  international 
law;  for,  to  be  truly  international,  it  must  embrace  the  various  systems  of  the 
world.  When  this  is  done  it  becomes  a world  court.  If  the  Permanent  Court 
of  Arbitration  is  to  judge  according  to  equity  and  international  law,  it  must 
not  be  the  equity  of  any  one  system,  hut  the  equity  which  is  the  resultant  of 
the  various  systems  of  law.  Just  as  the  individual  rarely  frees  himself  from 
his  environment,  so  the  jurist  is  influenced  by  his  system  of  law  and  the  training 
in  it.  Supposing,  therefore,  that  each  is  influenced  by  his  training;  it  is  neces- 
sary to  have  judges  trained  in  the  various  systems  of  law  in  order  that  the 
equity  administered  by  the  court  may  be  truly  the  spirit  of  the  laws.  For  the 
purpose  of  the  Permanent  Court  of  Arbitration  municipal  law  must  be  inter- 
nationalized. In  this  case,  and  in  this  case  only,  can  the  judgment  be  equitable 
in  any  international  sense,  and  the  judgment  so  formed  will  be  based  upon 
international  equity  as  well  as  international  law. 

It  is  stated  that  a jurist  is  the  product  of  his  training.  It  is  likewise  true 
that  the  individual  is  influenced  by  the  environment,  and  possesses,  in  a higher 
or  less  degree,  the  characteristics  of  his  nation.  It  would  be  futile — if,  indeed, 
it  were  possible — to  denationalize  a judge.  But  the  presence  in  the  court  of 
judges  trained  in  the  various  systems  of  law,  and  representing  in  their  intellectual 
development  characteristics  of  their  respective  nations,  would  go  far  towards 
engendering  an  international  spirit. 

The  project  which  the  American  delegation  has  the  honor  to  present  recog- 
nizes the  existence  of  the  various  systems  of  law  and  gives  adequate  representa- 
tion to  them. 

For  example,  the  Roman  law,  constituting  the  basis  of  so  many  European 
systems,  would  be  represented  in  its  present  and  modified  forms.  The  common 
law  of  England  would  be  represented,  and  the  common  law  of  England  as 
modified  in  the  western  world  would  not  be  overlooked.  The  nations  of  Europe 
which  have  given  law  to  the  western  world  would  sit,  of  right,  in  the  court, 


68 


THE  STATUS  OF  THE 


and  at  one  and  the  same  time  the  modifications  of  this  law,  to  meet  the  needs 
of  the  New  World,  would  be  before  the  court.  For  example,  the  law  of  Spain — 
the  source  of  law  in  Latin  America — would  appear  both  in  its  European  and 
American  form. 

The  question  of  language  is  one  of  great  difficulty,  and  language  as  such 
should  be  represented  in  the  court.  To  one  sitting  in  the  conference  day  by 
day  and  observing  the  difficulty  with  which  the  idea  clothes  itself  in  French 
form,  it  must  be  a matter  of  great  importance  that  the  languages  should  find 
representation  in  the  court,  so  that  the  judge  and  client  may  be  upon  speaking 
terms. 

If  a question  of  Spanish  law  is  involved,  it  is  important  that  the  judge 
understand  Spanish.  If  a matter  of  Russian  law  be  under  consideration,  a 
knowledge  of  Russian  might  well  be  fundamental.  An  examination  of  the 
American  project  shows  that  the  principle  of  population  does  ample  justice 
to  the  languages  most  widely  spoken  at  the  present  day. 

Finally,  a court,  to  be  international,  must  take  note  of  the  existence  of  the 
nations  of  the  world,  and  these  nations  must  find  adequate  representation  in 
the  court.  The  principle  of  population  adopted  shows  that  the  four  quarters 
of  the  globe  would  be  represented  in  the  court. 

It  may  have  seemed  strange,  at  first  sight,  that  the  American  project  bases 
itself  upon  the  principle  of  population,  but  when  it  is  seen  that  the  principle 
of  population  does  justice  to  the  industry  and  commerce  of  the  world;  that 
it  likewise  represents  the  various  systems  of  law;  that  it  includes  within  itself 
the  languages,  and  that  political  geography  is  not  overlooked,  it  becomes  at 
once  evident  that  the  principle  of  population  was  selected  not  for  any  virtue 
of  its  own  but  because  it  adequately  and  equitably  represents  and  embodies 
the  elements  essential  to  the  constitution  and  operation  of  a permanent  court 
of  arbitration. 

In  a word,  our  principle  recognizes  the  existence  of  nations,  and  their 
continued  existence,  as  political  units,  but  declares  solemnly  that  for  the  purposes 
of  justice  there  is  but  one  people. 

In  the  observations  which  I have  had  the  honor  to  submit  I have  dwelt 
upon  the  fundamental  underlying  principles  of  the  American  project  without 
considering  matters  of  detail.  Did  time  permit,  it  could  easily  be  shown 
how  a permanent  court  of  arbitration,  composed  of  fifteen  or  sixteen 
judges,  would  fulfill  the  mission  now  confided  to  other  and  variously  con- 
stituted bodies. 

For  example,  should  parties  to  a controversy  desire  a summary  proceeding, 
they  might  request  a special  detail  of  three  or  five  judges  from  the  Permanent 
Court  of  Arbitration  by  striking  alternately  from  the  list  an  equal  number 
until  the  desired  number  remained.  Powers  desiring  to  form  a commission 
of  inquiry  for  a particular  purpose  could  resort  to  the  Permanent  Court  of 
Arbitration  and  constitute  a commission  in  the  above-described  manner,  and 
add  thereto  an  equal  number  of  nationals  from  each  of  the  parties.  It  would 
require  no  great  powers  of  imagination  to  devise  a method  by  wFich  the 
personnel  of  the  Permanent  Court  of  Arbitration  might  be  modified  to  meet 
regulations  and  requirements  of  a court  of  prize;  and  finally,  by  special  consent 
of  the  parties  to  a controversy,  decisions  of  commissions  of  arbitration  might 
be  referred  to  the  Permanent  Court  of  Arbitration  to  be  reviewed  and  revised. 


INTERNATIONAL  COURT  OF  JUSTICE  69 

or  to  have  the  relative  duties  and  liabilities  under  the  findings  submitted  to 
further  examination. 

Without  considering  further  details,  and  without  prolonging  a discourse 
already  long,  I beg  to  express  the  conviction  that  the  mere  existence  of  a 
permanent  court  of  arbitration,  composed  of  a limited  number  of  judges  trained 
in  municipal  law  and  experienced  in  the  law  of  nations,  would  be  a guarantee  of 
peace.  As  long  as  men  are  what  they  are,  and  nations  are  formed  of  ordinary 
men,  we  shall  be  exposed  to  war  and  rumors  of  war.  The  generous  and  high- 
minded  may  seek  to  ameliorate  the  evils  and  misfortunes  of  armed  conflict,  but 
it  is  certainly  a nobler  task,  and  a more  beneficent  one,  to  remove  the  causes 
which,  if  unremoved,  might  lead  to  a resort  to  arms.  The  safest  and  surest 
means  to  prevent  war  is  to  minimize  the  causes  of  war  and  to  remove,  as  far  as 
possible,  its  pretexts.  Justice,  as  administered  in  municipal  courts,  has  done 
away  with  the  principle  of  self-help  and  the  use  of  force  as  a means  of  redress. 
An  international  court  where  justice  is  administered  equally  and  impartially  to 
the  small  as  well  as  to  the  great  will  go  far  to  substitute  the  rule  of  law  for  the 
rule  of  man,  order  for  disorder,  equilibrium  for  instability,  peace  and  content  for 
disorder  and  apprehension  of  the  future.  To  employ  the  language  of  a distin- 
guished colleague,  M.  de  Martens,  the  line  of  progress  is  par  la  justice  vers  la 
paix. 


70 


THE  STATUS  OF  THE 


(3)  MR.  LfiON  BOURGEOIS’  REMARKS  AT  THE  SESSION  OF  AUGUST 
3,  1907,  OF  THE  FIRST  SUBCOMMISSION  OF 
THE  FIRST  COMMISSION  i 

I have  listened  to  the  objections  which  have  been  so  eloquently  and  forcibly 
urged  by  a number  of  our  colleagues  against  the  projects  for  the  establishment 
of  a Permanent  Court  of  Arbitration,  presented  by  the  delegations  of  the  United 
States  and  of  Russia,  and  I have  noted  their  misgivings,  which  must  be  given 
most  careful  consideration.  It  seems  to  me,  however,  that  we  can  reassure  them. 

I share  the  views  of  Sir  Edward  Fry  and  the  Marquis  of  Soveral,  and  I 
would  state  that,  if  the  propositions  which  we  are  examining  were  likely  to  result 
in  the  abolition  of  the  Court  of  Arbitration,  as  established  at  The  Hague  in  1899, 
these  propositions  would  have  no  more  determined  opponent  than  I myself.  Mr. 
Beernaert  has  done  me  the  great  honor  to  quote  the  words  that  I have  repeatedly 
used  to  express  my  devotion  to  the  principles  of  the  First  Conference  and  to 
defend  the  system  of  1899  and  the  appointment  of  arbitrators  by  the  parties.  I 
find  nothing  to  retract  in  what  I have  said.  I still  think  what  I thought  at  the 
time  of  the  general  organization  of  a universal  court  of  arbitration,  when  its 
jurisdiction  is  considered  as  a whole  and  when  it  is  a question  of  throwing  it 
open  to  all  international  disputes,  even  the  gravest.  But  the  question  today  is 
entirely  different;  the  question  is  whether,  in  certain  restricted  cases,  under 
special  conditions,  it  is  not  possible  to  make  arbitration  a more  rapid  and  easier 
process,  under  a new  form,  but  one  that  is  in  no  way  incompatible  with  its  first 
form. 

It  was  in  this  spirit  that  the  French  delegation,  which  has  already  submitted 
two  propositions  aiming  to  facilitate  access  to  and  simplify  the  procedure  of  the 
international  courts  of  The  Hague,  examined  with  open  mind  the  propositions  of 
the  United  States  and  of  Russia,  and  in  this  spirit  it  now  gives  its  cordial  support 
to  the  ideas  which  inspired  them.  We  are  all  animated  by  a desire  to  further  the 
cause  of  arbitration ; but  we  appear  to  be  divided  into  two  groups  when  we  try 
to  find  the  method  that  will  best  increase  its  application.  Two  systems  are  face 
to  face : The  first  consists  in  proclaiming  arbitration  compulsory  in  certain  cases ; 
the  second  is  based  upon  the  permanence  of  a strongly  constituted  tribunal.  For 
our  part,  we  believe  that  these  two  methods  should  not  be  separated. 

We  admit  the  force  of  certain  criticisms  directed  by  Mr.  Asser  and  Mr.  Choate 
against  the  institution  of  1899.  As  Mr.  Asser  said,  “There  must  be  judges  at 
The  Hague.’’  If  there  are  none  here  now,  it  is  because  the  Conference  of  1899, 
surveying  the  whole  field  open  to  arbitrations,  meant  to  leave  it  to  the  parties  to 
choose  their  judges,  a choice  that  is  essential  in  all  cases  of  a certain  serious 
nature.  We  would  not  like  to  see  the  truly  arbitral  character  of  the  Court  of  1899 
disappear,  and  we  mean  to  maintain  the  free  choice  of  judges  as  the  higher  and 
common  rule  in  all  cases  for  which  no  other  rule  has  been  stipulated.  In  disputes 
of  a political  nature  especially  we  believe  that  this  rule  shall  always  be  the  real 
rule  of  arbitration,  and  that  no  state,  small  or  great,  will  consent  to  go  before 
an  arbitral  tribunal  unless  it  has  taken  an  active  part  in  the  appointment  of  the 
members  composing  this  tribunal. 

‘ Deuxieme  Conference  de  la  Paix,  Actes  et  Documents,  Vol.  II,  pp.  347-349- 


INTERNATIONAL  COURT  OF  JUSTICE  71 

But  does  the  same  thing  hold  with  respect  to  questions  of  a purely  legal 
nature?  Can  there  be  the  same  misgivings,  the  same  distrust?  And  does  not 
everyone  perceive  that  a real  court  composed  of  real  jurists  may  be  the  most 
competent  agency  to  decide  disputes  of  this  kind  and  to  render  decisions  upon 
questions  which  are  purely  questions  of  law?  It  is  our  opinion,  therefore,  that 
the  older  system  of  1899  or  the  newer  system  of  a truly  permanent  court  may  be 
preferred  according  to  the  nature  of  the  cases.  At  any  rate,  there  is  no  question 
of  making  the  new  system  compulsory;  no  one  will  be  forced  to  utilize  the  one 
rather  than  the  other.  The  choice  between  the  Court  of  1899  and  the  Tribunal 
of  1907  will  be  optional.  As  Sir  Edward  Fry  has  well  said : “ Experience  will 
bring  out  the  advantages  or  the  drawbacks  of  the  two  systems.  Usage  will  best 
sanction  the  jurisdiction  of  each.” 

If  we  have  admitted,  gentlemen,  that  it  is  impossible  to  extend  the  jurisdiction 
of  a permanent  court  to  all  cases  of  arbitration,  we  shall  likewise  be  compelled 
to  admit  that  it  is  impossible  to  subject  all  these  cases  to  arbitration,  whatever 
form  this  jurisdiction  may  be  given.  Some  states,  indeed — Italy  and  Denmark, 
for  example — have  found  it  possible  to  make  general  treaties  of  compulsory  arbi- 
tration with  each  other,  including,  without  any  reservation,  all  cases,  even  politi- 
cal disputes.  But  who  in  the  present  state  of  the  world  can  hope  to  see  all  the 
nations  sign  a universal  convention,  including  political  disputes  ? 

Here  again  we  are  led  to  draw  a distinction  between  political  questions  and 
legal  questions,  which  a while  ago  enlightened  and  guided  us.  In  the  matter  of 
political  disputes  it  does  not  at  this  time  appear  to  be  possible  to  make  arbitra- 
tion compulsory  by  means  of  a universal  treaty.  On  the  other  hand,  however,  is 
not  the  obligation  to  resort  to  arbitration  in  differences  of  a purely  legal  nature, 
for  which  no  one  of  them  would  want  to  risk  a bloody  conflict,  acceptable  to  all 
states?  In  this  field  we  can  hope  to  draw  the  bonds  of  arbitration  around  the 
nations ; we  can  hope  that  they  will  consent  to  recognize  the  obligation.  And 
when  I say  obligation,  I mean  a real  obligation  without  reservations ; because,  in 
the  matter  of  legal  questions,  I reject,  as  does  Baron  Marschall,  the  so-called 
clause  of  “ honor  and  vital  interests.”  All  jurists  will  agree  that  these  words 
introduce  a “ potestative  condition  ” into  conventions,  whereby  they  lose  the 
character  of  a legal  necessity  and  the  engagement  is  stripped  of  its  force.  Where 
the  obligation  is  possible  it  must  be  made  a reality. 

Therefore,  gentlemen,  we  see  before  us  two  distinct  spheres — the  sphere  of 
permanence  and  the  sphere  of  obligation.  But  in  both  spheres  we  reach  the  same 
conclusions.  There  is  in  the  sphere  of  universal  arbitration  a zone  of  possible 
obligation  and  a zone  of  necessary  option.  There  are  a number  of  political  ques- 
tions which,  in  the  present  state  of  the  world,  cannot  be  subjected  to  universal, 
compulsory  arbitration.  Likewise  in  the  sphere  of  permanence  there  are  matters 
which  by  their  very  nature  may  be,  perhaps  ought  to  be,  submitted  to  a permanent 
tribunal.  That  is  to  say,  there  are  matters  for  which  a permanent  tribunal  is 
possible;  but  there  are  other  matters  for  which  the  system  of  1899  continues  to 
be  necessary,  for  it  alone  can  give  the  states  the  confidence  and  security  without 
which  they  will  not  come  before  arbitrators. 

Now,  it  is  found  that  the  cases  which  can  be  referred  to  the  permanent  tri- 
bunal are  the  same  as  those  for  which  compulsory  arbitration  is  acceptable.  On 
the  other  hand,  political  matters,  for  which  the  states  must  continue  to  have  the 
privilege  of  resorting  to  arbitration,  are  precisely  those  which  require  arbitrators 


72 


THE  STATUS  OF  THE 


rather  than  judges,  arbitrators  chosen  with  a free  hand  at  the  very  time  that  the 
dispute  arises.  Do  we  not  now  perceive,  by  adequate  analysis,  the  exact  status 
of  the  problem?  And  is  it  not  the  very  nature  of  the  things  themselves  that 
furnishes  us  with  the  solution? 

Is  it  possible,  gentlemen,  to  reach  an  agreement  whereby  this  problem  may 
be  given  life?  Still  keeping  intact  this  great  Court  of  1899,  whose  services  are 
already  recorded  in  history,  can  we  establish  alongside  of  it — perhaps  within  it — a 
more  limited  tribunal,  truly  permanent  and  truly  legal  in  character,  for  purely 
legal  cases?  Is  it  possible  to  reach  an  agreement  wherein  we  shall  declare  that 
purely  legal  cases  are  subject  to  compulsory  arbitration?  May  we  thus  strengthen 
and  fix  in  part,  as  it  were,  the  international  institution  of  arbitration,  both  with 
respect  to  its  judges  and  with  respect  to  the  questions  over  which  it  has  jurisdic- 
tion? We  hope  so,  and  we  shall  hail  with  joy  the  day  when,  alongside  of  the 
Court  of  1899,  or  better,  at  its  very  hearth,  and  perhaps  by  it,  a permanent  court 
may  be  constituted  for  matters  of  a purely  legal  nature,  under  such  conditions 
that  the  smallest  as  well  as  the  greatest  states  may  find  in  it  equal  guarantees 
for  the  defining  and  security  of  their  rights. 

It  has  been  justly  said  that  in  the  other  commissions  of  the  Conference  ques- 
tions pertaining  to  the  regulation  of  war  have  been  considered  especially.  Even 
in  our  First  Commission,  the  subcommission  in  which,  on  the  initiative  of  our 
colleagues  of  Germany  and  England,  the  very  interesting  project  of  a Prize  Court 
is  being  elaborated,  is  in  reality  engaged  upon  a court  for  times  of  war.  Here 
alone  in  our  subcommission  we  can  endeavor  to  diminish  the  danger  of  war,  to 
strengthen  peace.  We  have  seen  that  there  are  at  present  two  practical  methods 
of  accomplishing  this,  and  we  have  said  that  in  our  opinion  these  two  methods 
are  inseparable — on  the  one  hand  the  defining  of  a certain  number  of  cases,  where 
there  is  a real  obligation  to  submit  them  to  arbitration,  and  on  the  other  hand 
the  establishment  of  a truly  permanent  court.  We  shall  labor  with  all  our  might 
to  bring  about  this  two-fold  result. 

The  world  wants  peace.  For  centuries  only  one  formula  has  been  believed  in, 
“Si  vis  pacem,  para  helium”;  that  is  to  say,  we  have  confined  ourselves  to  the 
military  organization  of  peace.  We  are  no  longer  there,  but  we  should  not  con- 
sider it  sufficient  to  bring  about  the  more  human  organization — I was  about  to 
say  the  pacific  organization — of  war. 

The  debates  which  have  taken  place  here  have  shown  us  the  progress  of  edu- 
cation in  this  matter,  the  new  and  ever-growing  sentiment  of  the  solidarity  of 
nations  and  of  men  in  the  struggle  against  natural  fatalities.  We  have  confidence 
in  the  increasing  activity  of  these  great  moral  forces,  and  we  hope  that  the  Con- 
ference of  1907  will  cause  the  work  undertaken  in  1899  to  take  a decisive  step 
forward  by  insuring,  in  a practical  and  real  manner,  the  legal  organization  of 
peace.  [Repeated  applause.] 


INTERNATIONAL  COURT  OF  JUSTICE 


73 


(4)  MR.  CHOATE’S  ADDRESS  ON  THE  COMPOSITION  OF  THE 
PROPOSED  COURT  OF  ARBITRAL  JUSTICE, 
SEPTEMBER  5,  1907.1 

The  committee  has  now  reached  a stage  in  its  deliberations  which  marks  a 
most  important  advance  towards  the  creation  of  a permanent  court  of  arbitration 
which  shall  satisfy  the  universal  demand  that  presses  upon  us.  We  have  decided 
with  practical  unanimity  that  there  shall  be  such  a court,  and  have  adopted  a 
constitution  for  its  organization  and  powers  with  equal  unanimity.  It  is  true 
that  the  representatives  of  several  powers  have  declined  to  take  part  in  the  dis- 
cussions involved  in  the  second  reading  of  the  projet  until  they  should  know 
what  plan  would  be  adopted  for  determining  the  number  of  the  judges  of  the 
court  and  the  mode  of  their  partition  among  the  nations.  But  I do  not  under- 
stand that  even  those  nations  find  any  objection  to  any  feature  of  the  pro  jet,  and, 
in  fact,  the  observations  which  fell  from  them,  and  their  acquiescence  in  the 
action  of  the  committee  on  the  first  reading  of  the  projet,  manifested  an  entire 
approval  of  it. 

If  the  conference  could  do  no  more  than  this,  it  would  have  made  very  marked 
progress  in  the  work,  for  in  the  First  Conference  the  very  idea  of  the  creation  of 
such  a court  was  promptly  laid  aside  as  impracticable,  if  not  impossible.  But  we 
owe  it  to  ourselves,  and  to  the  nations  that  we  represent,  not  to  let  the  work  stop 
here,  but,  by  a supreme  effort  for  conciliation,  to  agree  upon  the  important  and 
vital  subject  of  determining  the  number  of  judges  and  the  mode  of  their  distri- 
bution and  the  measure  of  their  action.  Whether  we  do  this  permanently  or 
provisionally  is  not  of  very  great  consequence.  To  accomplish  it  in  either  way 
will  make  the  conference  a great  success.  If  we  fail  to  bring  it  about  in  one  way 
or  the  other,  the  conference  itself  will  be  to  that  extent  a failure.  And  having 
come  to  The  Hague  accredited  by  the  nations  that  sent  us,  we  shall  return  to  them 
seriously  discredited. 

It  may,  therefore,  not  be  out  of  place  for  me,  who  originally  introduced  the 
proposition  for  the  court — which  up  to  this  point  has  been  sustained  with  such 
general  favor — to  review  very  briefly  the  various  suggestions  that  have  been  made 
on  this  important  subject. 

When  the  subcommittee  that  had  in  charge  the  preparation  of  the  projet,  con- 
sisting of  one  from  each  of  the  delegations — British,  German,  and  American — 
had  completed  it,  they  attempted  to  devise  a scheme,  a possible  scheme,  which 
should  serve  as  a basis  of  discussion  and  challenge  the  presentation  of  any  and 
every  other  scheme  that  any  member  of  the  committee  might  regard  as  possible. 
It  was  not  even  recommended  by  them  for  adoption,  nor  was  it  in  any  sense  a 
joint  scheme  of  the  three  powers  or  a separate  scheme  of  either — American, 
British,  or  German.  It  recognized  and  was  based  upon  the  equal  sovereignty  of 
the  nations,  and  took  account  at  the  same  time  of  the  differences  that  existed 
between  them  in  population,  in  territory,  in  commerce,  in  language,  in  systems  of 

^ La  Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Documents 
(ist  Commission,  Committee  of  Examination  B,  September  5,  1907),  Vol.  H, 
pp.  683-687  (689-693). 


74 


THE  STATUS  OF  THE 


law,  and  in  other  respects,  and  especially  the  difference  in  the  interests  which  the 
several  nations  would  normally  and  naturally  have  at  stake  in  the  proceedings 
before  the  court  and  in  the  exercise  of  its  jurisdiction.  It  provided  for  a court 
of  seventeen  judges,  to  be  organized  for  a period  of  twelve  years,  and  that  of  the 
seventeen,  eight  nations,  who  will  be  generally  recognized  as  having  the  greatest 
interests  at  stake  in  the  exercise  by  the  court  of  its  powers,  should  each  have  a 
judge  sitting  during  the  whole  period  of  the  organization. 

It  provided  also  that  each  of  the  other  powers  should  appoint,  in  the  same 
way  and  at  the  same  time,  a judge  for  the  same  period,  but  who  should  be  called 
to  the  exercise  of  judicial  functions  in  the  court  for  variously  measured  periods, 
according  to  their  population,  territorial  extent,  commerce,  and  probable  interest 
at  stake  before  the  court,  these  measured  periods  ranging  from  ten  years  down 
to  one. 

By  this  method  the  absolute  and  equal  sovereignty  of  each  of  the  forty-five 
powers  was  duly  respected  and  their  differences  in  other  respects  not  lost  sight  of. 

The  presentation  and  distribution  of  this  scheme,  as  an  anonymous  one,  has 
answered  the  purpose  of  inviting  abundant  criticism  and  the  presentation  of 
counter-schemes.  The  main  objection  to  it,  held  by  many  of  the  nations  to  whom 
it  assigned  less  than  a full  period  for  the  exercise  of  judicial  functions  by  their 
judges,  has  been  that  the  failure  to  give  to  the  judges  appointed  by  each  nation 
full  power  to  sit  all  the  time  was  in  some  way  a derogation  from  the  dignity  and 
sovereignty  of  each  of  them,  and  that  the  same  principle  which  recognized  the 
equal  sovereignty  of  each  of  the  forty-five  nations  required  a recognition  of  the 
claim  that  they  were  equal  in  all  other  respects.  This  claim,  if  insisted  and  acted 
upon,  would  of  course  render  the  establishment  of  an  international  court  on  any 
such  basis  of  partition  an  absolute  impossibility,  and  require  a court  of  forty- 
five  judges  sitting  all  the  time. 

As  was  expected,  a very  interesting  counter-scheme  was  proposed,  based  upon 
the  alleged  equality,  not  only  in  sovereignty  but  in  all  other  respects,  of  all  the 
states.  It  proposed  to  abolish  the  existing  court,  and  for  a new  court  to  be  con- 
stituted, consisting  of  forty-five  judges,  one  to  be  appointed  by  each  state,  and 
these  to  be  divided  into  groups  in  alphabetical  order,  of  fifteen  each,  which  were 
to  sit  for  alternate  periods  of  three  years.  This  scheme  was  offered  as  an  illus- 
tration of  what  was  possible,  based  upon  a recognition  of  the  absolute  equality 
of  all  states.  Two  objections  to  it  were  suggested:  First,  that  an  allotment  of 
periods  by  alphabetical  order  was  really  the  creation  of  a court  by  chance;  and 
second,  that  it  deprived  each  nation  of  any  hand  or  voice  in  the  court  for  six 
years  out  of  the  nine  for  which  it  proposed  to  establish  it;  whereas  the  first 
scheme  had  given  every  nation  a seat  in  the  court  by  a permanent  judge  for  a 
fixed  period,  besides  the  right  to  have  a judge  of  its  own  appointment  upon  the 
court  whenever  it  had  a case  before  it  for  decision. 

Another  proposal  has  been  that  seventeen  nations,  including  the  eight  first 
mentioned  and  nine  others  which  together  should  represent  all  parts  of  the  world, 
all  languages,  systems  of  law,  races,  and  human  interests,  should  be  selected  by 
the  conference,  with  a power  to  each  to  appoint  a judge  for  the  whole  term  of  the 
court,  thus  recognizing  the  principle  of  equality  of  sovereignty  to  be  exercised  in 
the  power  of  creating  the  court  and  selecting  the  judges. 

Another  proposal  has  been  that  four  judges  should  be  assigned  to  America, 
as  a unit,  trusting  to  that  cordial  and  friendly  relation  which  exists  at  the  present 


INTERNATIONAL  COURT  OF  JUSTICE  75 

time,  and  it  is  hoped  will  always  exist,  between  the  United  States  and  all  other 
nations  of  Central  and  South  America,  and  which  has  been  successfully  fostered 
and  maintained  by  several  Pan-American  conferences,  to  enable  them  to  make  a 
distribution  among  themselves  of  the  four  judges  so  assigned,  in  a manner  that 
should  be  satisfactory  to  all. 

This  plan  would  have  relieved  the  problem  of  all  questions  raised  in  regard 
to  America,  and  would  have  left  it  for  the  other  nations  to  make  a similar  dis- 
tribution of  the  thirteen  judges  among  themselves,  which  it  was  hoped  might  be 
done  by  means  of  the  peaceful  and  friendly  relations  now  existing  between  all 
the  nations  of  both  continents. 

The  practicability  of  this  scheme,  as  of  all  the  others,  is  still  open  for  the 
consideration  of  the  committee. 

The  suggestion  has  also  been  made  that,  for  the  purpose  of  the  partition  of  the 
judges  of  the  court,  the  nations  should  be  classified  upon  the  sole  element  of 
comparative  population ; but  it  has  been  found,  upon  examination,  that  there  were 
so  many  other  essential  factors  that  ought,  upon  every  principle  of  justice  and 
common  sense,  to  enter  into  the  distribution  of  judges  that  no  definite  project  for 
such  a distribution  has  been  proposed. 

The  statements  already  made  demonstrate  the  extreme  delicacy  and  difficulty 
of  the  problem  presented  to  the  conference  in  the  formation  of  the  Permanent 
Court,  but  I confidently  believe  that  it  is  entirely  within  the  power  of  the  com- 
mittee, on  a frank  and  candid  exchange  of  views,  and  with  the  disposition  that 
possesses  it,  to  make  such  mutual  concessions  as  may  be  necessary  to  solve  the 
problem. 

It  has  been  suggested  that  it  would  be  better  to  put  the  several  plans  proposed 
to  the  vote,  so  as  to  draw  the  line  of  distinction  clearly  between  its  advocates  and 
its  opponents ; but,  as  all  are  believed  to  be  in  favor  of  the  Permanent  Court,  the 
expediency  of  such  a proposition  is  doubtful,  for  such  a vote  would  not  in  any 
way  indicate  what  nations  were  in  favor  of  a permanent  court  and  which  of  them 
were  opposed.  And  to  have  the  project  of  a court  voted  down  because  linked 
with  a scheme  for  the  distribution  of  judges  that  was  unacceptable  to  a majority 
would  convey  to  the  world  a wrong  impression — that  the  conference  was  not  in 
favor  of  the  creation  of  such  a court. 

It  has  also  been  suggested  that  the  difficulty  should  be  regarded  as  insuperable 
in  the  present  conference,  and  avoided,  or  rather  evaded,  by  securing  a unanimous 
vote  for  the  establishment  of  the  court  upon  the  constitution  now  under  con- 
sideration, and  leaving  it  to  the  powers  or  to  the  next  conference  to  establish, 
if  possible,  a mode  of  selecting  the  judges  that  should  be  satisfactory  to  all  the 
powers. 

As  I have  already  said,  the  adoption  of  this  plan  would  be  perhaps  an  advance 
upon  anything  that  has  heretofore  been  accomplished.  But  it  would  be  surely 
a serious  failure,  and  should  not  be  resorted  to  with  any  false  illusions,  as  it 
might  practically  result  in  the  burial  of  the  project  for  a permanent  court 
altogether. 

We  must  solve  the  problem — either  permanently  or  provisionally.  This  is  a 
solemn  duty  that  rests  upon  us,  and  it  would  be  ignominious  in  the  last  degree 
for  us  to  confess  our  inability  to  discharge  it ; and  we  therefore  have  to  consider 
a wholly  different  method  from  any  of  those  heretofore  suggested,  namely,  a 
free  election  by  the  whole  conference,  voting  by  states,  each  exercising  sovereign 


76 


THE  STATUS  OF  THE 


power  on  an  absolute  equality,  and  accepting  the  result  of  such  an  election,  as 
electors  or  elected,  as  such  an  exercise  of  the  elective  power  might  produce. 

There  is  nothing  to  prevent  the  conference  voting  freely  and  without  any 
restraint  whatever  for  a definite  number  of  nations — seven  or  nine  or  eleven, 
thirteen  or  seventeen — who  should  each  be  authorized  to  appoint  a judge  for  the 
full  term  of  the  court.  This  would  concede  all  that  is  claimed  in  the  way  not 
only  of  equal  sovereignty  but  of  equality  in  all  other  respects,  and  each  nation 
would  take  its  chance  of  a successful  canvass,  and  I have  no  doubt  it  would  result 
in  the  successful  establishment  of  an  excellent  court  to  which  all  nations  could 
resort  or  refrain  from  resorting  in  each  case  that  should  arise,  as  they  should 
see  fit. 

Another  plan  worthy  of  consideration,  and  which,  I think,  might  successfully 
solve  the  problem,  is  to  resort  to  an  election — in  which  all  the  states  should  have 
an  equal  voice — of  individuals,  jurists,  or  statesmen  of  distinction,  to  constitute 
the  court.  If  this  method  is  resorted  to,  it  might  be  in  connection  with  the  plan 
for  establishing  the  court  and  its  constitution,  and  leaving  the  method  of  final  and 
permanent  selection  of  judges  to  the  nations  or  to  the  next  conference.  For  it 
might  and  perhaps  ought  to  be  resorted  to  as  a temporary  and  provisional  plan 
to  secure  the  organization  of  the  court  as  soon  as  it  should  be  ratified  by  a suf- 
ficient number  of  powers  constituting  a majority. 

The  plan  would  be  for  an  election,  each  state  casting  one  vote,  of  a prescribed 
number  of  judges,  which  should  be  deemed  suitable  for  the  temporary  and  pro- 
visional organization  of  the  court,  to  hold  office  either  until  the  next  conference 
or  for  a specified  number  of  years,  or  until  the  powers,  by  a diplomatic  inter- 
change of  views,  should  adopt  some  different  method  as  a permanency. 

There  is  ample  material  within  the  conference  itself  and  within  the  existing 
court,  in  the  constitution  of  which  all  the  powers  have  had  an  equal  hand,  for  the 
creation  and  installation  of  such  a tribunal  provisionally.  The  selection  might  be 
limited  to  the  members  of  the  existing  court,  or  extended  to  other  jurists  whose 
names  are  familiar  to  all,  every  one  of  them  of  the  highest  character  and  of 
world-wide  reputation,  and  any  quorum  of  whom,  sitting  as  a court,  would  com- 
mand the  confidence  and  admiration  of  the  entire  world,  and  be  relied  upon  to 
do  justice  in  any  case  that  might  arise.  For  one,  speaking  for  the  United  States 
of  America,  I should  be  perfectly  willing  to  intrust  the  fortunes  of  the  court,  and 
the  success  of  this  conference  in  creating  it,  to  the  result  of  any  election  that 
might  be  made  as  suggested,  and  I hope  that  it  will  be  taken  into  serious  con- 
sideration and  recommended  for  action  by  the  committee,  in  the  event  of  no  plan 
being  proposed  that  can  command  more  general  approval. 

A further  method  of  election,  under  further  limitations,  has  been  proposed 
and  is  also  worthy  of  consideration,  and  that  is  that  the  nations  should  nominate 
each  a number  of  jurists,  selected  from  the  old  court  or  at  large,  to  constitute  the 
new  court,  whether  provisionally  or  permanently ; that  these  nominations  should 
be  received  by  an  executive  committee  of  three,  to  be  appointed  by  the  president  of 
the  conference;  and  that  the  names  of  all  candidates  nominated  by  five  or  more 
powers  should  be  placed  upon  a ballot  and  offered  for  the  final  choice  of  the  con- 
ference, voting  by  states ; and  that  those  receiving  the  largest  number  of  votes 
on  such  final  ballot,  to  the  requisite  number  prescribed  for  the  court,  should  be 
declared  the  elected  judges. 

I am  not  without  hope  that  still  other  plans  will  be  evolved  from  the  discussion 


INTERNATIONAL  COURT  OF  JUSTICE  77 

of  this  intricate  and  important  matter  which  is  now  to  take  place  that  may  com- 
mand the  approval  of  the  committee  and  secure  the  establishment  of  the  court. 

So  sure  am  I that  the  establishment  and  organization  of  the  court  will  be  a 
great  triumph  of  civilization  and  justice,  and  an  effectual  guarantee  of  the  peace 
of  the  world,  that  I would  urge,  with  all  the  earnestness  of  which  I am  capable, 
the  adoption  even  of  one  of  the  provisional  schemes  referred  to,  if  no  permanent 
method  for  the  choice  of  judges  can  be  now  agreed  upon.  And  I trust  that,  lay- 
ing aside  all  prejudices  and  national  differences,  all  pride  of  opinion  and  all 
desire  to  secure  special  advantages  for  our  respective  nations,  we  shall  devote 
ourselves,  with  one  mind  and  one  heart,  to  the  solution  of  the  problem  that  is 
now  before  us. 


78 


THE  STATUS  OF  THE 


(5)  MR.  CHOATE’S  REMARKS  ON  THE  SELECTION  OF  THE  JUDGES 
OF  THE  COURT  OF  ARBITRAL  JUSTICE  BY  THE  PRINCIPLE 
OF  ELECTION,  SEPTEMBER  18,  1907  i 

I do  not  think  that  the  time  has  come  to  give  ourselves  up  to  despair.  We 
must  do  something  to  realize  the  hopes  of  the  civilized  world. 

It  follows  from  the  speech  of  M.  Barbosa  that  he  objects  to  accepting  any 
other  plan  than  his  own.  That  is  another  form  of  despair.  But  in  any  case,  as 
the  president  has  very  clearly  shown,  the  investigating  committee  has  not  yet 
decided  the  question. 

Many  plans  have  been  presented  to  this  committee,  but  they  have  not  been 
sufficiently  studied  and  discussed. 

I persist  in  thinking  that  the  plan  of  rotation  would  be  the  cleverest  and  the 
most  just.  However,  in  face  of  the  opposition  of  certain  powers,  we  have  given 
it  up. 

The  only  method  which,  under  the  present  conditions,  offers  any  chance  of 
success  is  therefore  that  of  the  election  of  a court,  whether  it  be  a permanent  or 
a provisional  one. 

The  objections  made  to  this  method  of  composition  of  the  court  are  purely 
imaginary.  It  is  the  laying  down  of  distrust  as  a principle — the  distrust  of  the 
wisdom  and  of  the  loyalty  of  the  electors. 

One  fears  the  coalitions  of  small  powers  against  the  great.  I declare  that  I 
do  not  share  these  apprehensions. 

The  representatives  of  the  small  nations  are  as  qualified  to  be  electors  as  the 
others,  and  they  will  agree  to  choose  the  best  judges,  independently  of  nationality. 
And  assuredly,  worthy  judges  can  be  found  among  the  subjects  of  these  small 
nations.  If  we  have  not  confidence  in  each  other,  why  do  we  strive,  then,  to  con- 
clude a convention?  Why  do  we  not  adopt  a method  which  admits  the  principle 
of  the  equality  of  nations? 

For  myself,  personally,  I would  run  the  risk  of  an  election,  whether  it  be  made 
by  the  governments,  or  by  the  Permanent  Court,  or  by  this  same  conference,  pro- 
vided that  all  nationalities,  all  languages,  and  all  systems  of  law  be  represented. 
It  matters  little  to  me  whether  my  nation  may  have  a judge  or  not.  We  are  not 
here  for  the  sole  advantage  of  our  own  country,  but  for  the  benefit  of  the  com- 
munity of  nations. 

The  plan  of  M.  de  Martens,  which  has  been  submitted  to  us,  is  excellent  as  a 
whole.  He  proposes  that  each  country  designate  an  elector,  taken  from  the  list 
of  the  members  of  the  Permanent  Court,  and  that  these  forty-five  electors  should, 
in  their  turn,  choose  fifteen  judges,  who  should  form  the  court. 

Nevertheless,  in  this  plan  a certain  number  of  judges  is  ascribed  to  Europe, 
to  America,  and  to  Asia,  and  that  is  its  vulnerable  point,  for  that  recalls  to  mind 
the  old  plan  of  rotation.  On  the  other  hand,  it  does  not  appear  indispensable 
to  assemble  again  all  the  electors  at  The  Hague,  for  practically  the  vote  would 

1 La  Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Documents 
(ist  Commission,  Committee  of  Examination  B,  September  i8,  I907)»  Vol.  H, 
pp.  697-699. 


INTERNATIONAL  COURT  OF  JUSTICE  79 

be  issued  by  the  governments.  One  could  therefore  dispense  with  the  formality 
of  the  reunion  and  have  the  electors  vote  through  the  medium  of  the  bureau.^ 

I take  the  liberty  in  this  class  of  ideas  to  make  a proposition  to  the  committee 
which  seems  to  me  to  answer  all  of  the  objections. 

Proposition  with  Regard  to  the  Composition  of  the 
Court  of  Arbitr.\l  Justice 

Article  i.  Every  signatory  power  shall  have  the  privilege  of  appointing  a 
judge  and  an  assistant  qualified  for  and  disposed  to  accept  such  positions  and  to 
transmit  the  names  to  the  international  bureau. 

Article  2.  The  bureau,  that  being  the  case,  shall  make  a list  of  all  the  pro- 
posed judges  and  assistants,  with  indication  of  the  nations  proposing  them,  and 
shall  transmit  it  to  all  the  signatory  powers. 

Article  3.  Each  signatory  power  shall  signify  to  the  bureau  which  one  of  the 
judges  and  assistants  thus  named  it  chooses,  each  nation  voting  for  fifteen  judges 
and  fifteen  assistants  at  the  same  time. 

Article  4.  The  bureau,  on  receiving  the  list  thus  voted  for,  shall  make  out 
a list  of  the  names  of  the  fifteen  judges  and  of  the  fifteen  assistants  having  re- 
ceived the  greatest  number  of  votes. 

Article  5.  In  the  case  of  an  equality  of  votes  affecting  the  selection  of  the 
fifteen  judges  and  the  fifteen  assistants,  the  choice  between  them  shall  be  by  a 
drawing  by  lot  made  by  the  bureau. 

Article  6.  In  case  of  vacancy  arising  in  a position  of  judge  or  of  assistant, 
the  vacancy  shall  be  filled  by  the  nation  to  which  the  judge  or  assistant  belonged. 

This  plan  is  so  simple  that  there  is  no  need  of  long  discussion.  If  fifteen 
nations  only  accept  it,  it  could  become  the  point  of  departure  of  a general  agree- 
ment. The  example  of  1899  is  there  to  prove  that  the  adhesions  could  come 
afterwards. 

The  immediate  adhesion  of  any  particular  nation,  great  or  small,  would  not 
be  indispensable.  This  would  be  an  experiment,  and  the  nations  who  would 
not  accept  it  to-day  would  be  able  to  come  to  a decision  later  on. 

I think  that  my  proposition,  if  it  is  adopted,  will  give  us  good  judges  and  will 
satisfy  all  the  world. 

It  is  a matter  of  indifference  to  me  whether  the  election  takes  place  here  or 
elsewhere,  whether  the  court  be  permanent  or  provisional,  constituted  for  five, 
for  three,  for  two  years,  provided  that  we  may  not  return  to  our  countries  with 
empty  hands.  It  is  better  to  do  something  than  to  do  nothing.  I do  not  yet 
share  the  despair  which  some  of  the  delegates  who  support  our  plan  have  ex- 
pressed. As  long  as  the  conference  lives  there  is  cause  for  hope. 

1 The  institution  referred  to  is  the  international  bureau,  which  is  the  record 
office  of  the  so-called  Permanent  Court  and  “ the  channel  for  communications 
relative  to  the  meetings  of  the  court” — (Convention  of  1899,  for  the  Pacific 
Settlement  of  International  Disputes,  Art.  23;  Revision  of  1907,  Art.  44). 


APPENDIX  B 


(i)  THE  AMERICAN  PROJECT  F OR  A PERMANENT  COURT  OF 

ARBITRATION.! 

I.  A Permanent  Court  of  Arbitration  shall  be  organized,  to  consist  of  fifteen 
judges  of  the  highest  moral  standing  and  of  recognized  competency  in  questions 
of  international  law.  They  and  their  successors  shall  be  appointed  in  the  manner 
to  be  determined  by  this  Conference,  but  they  shall  be  so  chosen  from  the  dif- 
ferent countries  that  the  various  systems  of  law  and  procedure  and  the  principal 
languages  shall  be  suitably  represented  in  the  personnel  of  the  court.  They  shall 

be  appointed  for years,  or  until  their  successors  have  been  appointed  and 

have  accepted. 

II.  The  Permanent  Court  shall  convene  annually  at  The  Hague  on  a specified 
date  and  shall  remain  in  session  as  long  as  necessary.  It  shall  elect  its  own 
officers  and,  saving  the  stipulations  of  the  convention,  it  shall  draw  up  its  own 
regulations.  Every  decision  shall  be  reached  by  a majority,  and  nine  members 
shall  constitute  a quorum.  The  judges  shall  be  equal  in  rank,  shall  enjoy  diplo- 
matic immunity,  and  shall  receive  a salary  sufficient  to  enable  them  to  devote  their 
time  to  the  consideration  of  the  matters  brought  before  them. 

III.  In  no  case  (unless  the  parties  expressly  consent  thereto)  shall  a judge 
take  part  in  the  consideration  or  decision  of  any  case  before  the  court  when  his 
nation  is  a party  therein. 

IV.  The  Permanent  Court  shall  be  competent  to  take  cognizance  and  deter- 
mine all  cases  involving  differences  of  an  international  character  between  sover- 
eign nations,  which  it  has  been  impossible  to  settle  through  diplomatic  channels 
and  which  have  been  submitted  to  it  by  agreement  between  the  parties,  either 
originally  or  for  review  or  revision,  or  in  order  to  determine  the  relative  rights, 
duties  or  obligations  in  accordance  with  the  finding,  decisions,  or  awards  of  com- 
missions of  inquiry  and  specifically  constituted  tribunals  of  arbitration. 

V.  The  judges  of  the  Permanent  Court  shall  be  competent  to  act  as  judges 
in  any  Commission  of  Inquiry  or  Special  Tribunal  of  Arbitration  which  may  be 
constituted  by  any  power  for  the  consideration  of  any  matter  which  may  be 
specially  referred  to  it  and  which  must  be  determined  by  it. 

VI.  The  present  Permanent  Court  of  Arbitration  might,  as  far  as  possible, 
constitute  the  basis  of  the  court,  care  being  taken  that  the  powers  which  recently 
signed  the  Convention  of  1899  are  represented  in  it. 

! La  Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Documents, 
Vol.  II,  pp.  1031-1032;  Scott’s  Hague  Peace  Conferences  of  1899  and  1907,  pp. 
821-822. 


80 


INTERNATIONAL  COURT  OF  JUSTICE 


8i 


(2)  THE  PROJECT  FOR  A PERMANENT  COURT  OF  ARBITRATION 
DRAFTED  BY  THE  AMERICAN  DELEGATION  UPON  WHICH  THE 
JOINT  PROJECT  OF  GERMANY,  GREAT  BRITAIN  AND  THE 
UNITED  STATES  WAS  BASED.i 


Article  i.  With  the  object  of  facilitating  an  immediate  recourse  to  arbitra- 
tion for  international  differences  which  could  not  be  settled  by  diplomatic 
methods,  the  signatory  powers  undertake  to  organize  a Permanent  Court  of 
Arbitration  accessible  at  all  times,  and  acting,  unless  otherwise  stipulated  by 
the  parties,  in  accordance  with  the  rules  of  procedure  included  in  the  present 
convention. 

Article  2.  The  Permanent  Court  of  Arbitration  shall  be  composed  of  fifteen 
(sixteen)  persons  possessing  the  qualifications  required  for  judges  in  their  re- 
spective countries,  and  who  shall  be  of  known  competency  in  questions  of  inter- 
national law. 

The  judges  of  the  Permanent  Court  of  Arbitration  shall  hold  office  for  the 
period  of  ...  . (six)  years,  or  until  their  successors  are  appointed  and  qualify. 

The  judges  of  the  Permanent  Court  of  Arbitration  herein  provided  for  shall 
be  chosen  as  far  as  practicable  from  the  list  of  members  comprising  the  existing 
court. 

Article  3.  In  case  of  the  expiration  of  the  term  of  office,  death,  resignation, 
inability  to  act,  or  failure  to  qualify,  of  any  judge,  the  vacancy  shall  be  filled  by 
the  state  or  group  of  states  having  the  right  to  appoint  the  said  judge  and  in 
accordance  with  the  provisions  of  the  article  governing  appointments.  The  suc- 
cessor so  appointed  shall  be,  if  practicable,  selected  from  the  list  of  members  of 
the  existing  Court  of  Arbitration. 

Article  4.  The  judges  of  the  Permanent  Court  of  Arbitration  shall  be  ap- 
pointed and  sworn,  or  shall  otherwise  qualify,  according  to  the  law  of  their 
respective  states  regulating  the  duties  and  obligations  of  judicial  officers.  The 
appointment,  acceptance  and  oath  of  office  taken  by  the  judge  shall  be  certified 
to  the  Administrative  Council  by  the  appointing  state.  The  commissions  of  the 
judges  of  the  Permanent  Court  of  Arbitration  shall  be  in  the  form  prescribed  by 
the  Administrative  Council  and  the  judges  so  commissioned  shall  be  accredited 
to  the  said  council. 

Article  5.  In  no  case  (unless  the  party  in  controversy  shall  expressly  consent 
thereto)  shall  a judge  participate  in  the  consideration  or  discussion  of  any 
matter  before  the  Permanent  Court  of  Arbitration  in  which  his  state  is  a party. 

Article  6.  Each  judge  of  the  Permanent  Court  of  Arbitration  shall,  during 
his  term  of  office,  receive  an  annual  compensation  of  . . . to  be  borne  by  the 
signatory  powers  in  the  proportion  established  for  the  International  Bureau  of 
the  Universal  Postal  Union. 

The  salary  herein  specified  shall  be  paid  by  the  International  Bureau  at  the 
expiration  of  each  six  months  from  the  date  of  the  opening  of  the  Permanent 
Court  of  Arbitration  at  The  Hague. 

The  judges  of  the  Permanent  Court  of  Arbitration  shall  be  reimbursed  by 
the  International  Bureau  for  the  necessary  traveling  expenses  upon  the  approval 
of  the  Administrative  Council. 

No  judge  or  officer  of  the  Permanent  Court  of  Arbitration  shall  receive  from 
his  own  or  any  other  state  any  compensation  or  allowance  for  his  services  on 
the  Permanent  Court  or  Special  Arbitration,  Commission  of  Inquiry,  or  any 
matter  whatever  connected  with  the  exercise  of  his  duties  as  judge  of  the  Per- 
manent Court  of  Arbitration. 

Article  7.  The  court  shall  meet  annually  at  The  Hague  (on  the  third  Wed- 
nesday in  June)  and  shall  remain  in  session  for  a period  of  sixty  days  and  such 
longer  time  as  shall  be  necessary  for  the  disposal  of  business  before  it. 

1 Reprinted  from  Scott’s  “ American  Addresses  ” at  the  Second  Hague  Peace 
Conference,  p.  206. 


82 


THE  STATUS  OF  THE 


Nine  judges  of  the  Permanent  Court  of  Arbitration  shall  constitute  a quorum 
for  the  transaction  of  business,  and  all  decisions  shall  be  by  a majority  vote  of 
those  present  and  participating. 

The  Permanent  Court  of  Arbitration  may  adjourn  to  a fixed  date,  or  it  may 
adjourn  to  reassemble  upon  the  call  of  the  president  in  order  to  consider  or 
receive  matters  which  may  be  presented  for  its  consideration. 

Article  8.  The  judges  of  the  Permanent  Court  of  Arbitration  shall  be  of 
equal  rank,  and  be  entitled  to  diplomatic  immunity.  They  shall  choose  a presid- 
ing judge  from  among  their  number  and  they  shall  be  seated  according  to  the 
date  of  their  respective  commissions. 

The  presiding  judge  shall  be  the  president  of  the  Permanent  Court  of  Arbi- 
tration, and  in  the  performance  of  his  duties  shall  exercise  no  greater  authority 
and  prerogatives  than  the  judges  of  the  Permanent  Court,  unless  such  have  been 
specially  conferred  upon  him  by  the  judges  of  said  court. 

Article  g.  The  International  Bureau  of  the  Court  of  Arbitration  of  The 
Hague  shall  serve  as  the  Secretariat  of  the  Permanent  Court  of  Arbitration.  It 
shall  have  custody  of  the  archives  and  of  the  proceedings  of  the  Permanent 
Court  of  Arbitration. 

All  communications  between  the  Permanent  Court  of  Arbitration  and  the 
powers,  except  those  made  in  open  court,  shall  be  through  the  International 
Bureau. 

Article  io.  The  Permanent  Court  of  Arbitration  shall  make  rules  of  proce- 
dure not  inconsistent  with  nor  prescribed  by  the  Convention  for  the  Peaceful 
Settlement  of  International  Differences. 

Article  ii.  The  Permanent  Court  of  Arbitration  shall  be  competent  to  re- 
ceive, consider  and  determine  any  claim  or  petition  from  a sovereign  state  touch- 
ing any  difference  of  an  international  character  with  another  sovereign  state 
which  diplomacy  has  failed  to  settle;  provided,  however,  that  such  difference  is 
not  political  in  character  and  does  not  involve  the  honor,  independence  or  vital 
interests  of  any  state. 

It  shall  also  be  competent  to  receive  and  consider  any  application  from  a 
sovereign  state  to  review  and  revise  or  determine  the  relative  rights,  duties  and 
liabilities  under  the  findings  rendered  within  one  year  by  any  Commission  of 
Inquiry  or  Special  Arbitration  between  sovereign  states  to  which  the  petitioning 
state  was  a party. 

Article  12.  The  Permanent  Court  of  Arbitration  shall  not  be  competent  to 
receive  or  consider  any  petition,  application  or  communication  whatever  from 
any  person  natural  or  artificial  except  a sovereign  state,  nor  shall  it  be  competent 
to  receive  any  application  or  petition  from  any  sovereign  state  unless  it  relates 
exclusively  to  a difference  of  an  international  character  with  another  state  which 
diplomacy  has  failed  to  settle  and  which  is  not  political  in  character  and  does  not 
affect  the  honor,  independence  or  vital  interests  of  any  state. 

Article  13.  The  Permanent  Court  of  Arbitration  shall  not  take  any  action 
on  any  petition  or  application  which  it  is  competent  to  receive  unless  it  shall  be 
of  the  opinion  that  a justiciable  case,  and  one  which  it  is  competent  to  entertain 
and  decide  and  worthy  of  its  consideration,  has  been  brought  before  it,  in  which 
case  it  may  in  not  less  than  thirty  or  more  than  ninety  days  after  presentation 
of  the  petition  invite  the  other  sovereign  state  to  appear  and  submit  the  matter 
to  judicial  determination  by  the  court. 

In  the  latter  event  the  state  so  invited  may  (a)  refuse  to  submit  the  matter, 
(b)  refrain  from  submitting  the  matter  by  failing  for  . . . days  to  make  any 
response  to  the  invitation,  in  which  event  it  shall  be  deemed  to  have  refused 
to  submit  the  matter;  (c)  submit  the  matter  in  whole,  or  (d)  offer  to  submit 
the  matter  in  part  or  in  different  form  from  that  stated  in  the  petition,  in  which 
event  the  petitioning  state  shall  be  free  either  to  accept  the  qualified  submission 
or  to  withdraw  its  petition  or  application,  and  shall  signify  its  election  within  a 
time  to  be  determined  by  the  court;  (e)  appear  for  the  sole  purpose  of  denying 
the  right  of  the  petitioning  state  to  any  redress  or  relief  on  the  petition  or  appli- 
cation presented — that  is  to  say,  it  may  except  or  demur ; in  case  the  court  does 
not  sustain  this,  it  shall  renew  the  invitation  to  appear  and  submit  the  matter. 

Article  14.  In  case,  however,  the  states  in  controversy  cannot  agree  upon  the 


INTERNATIONAL  COURT  OF  JUSTICE  83 

form  and  scope  of  the  submission  of  the  difference  referred  to  in  the  petition, 
the  Court  of  Arbitration  may  appoint,  upon  the  request  by  either  party,  a com- 
mittee of  three  from  the  members  of  the  Administrative  Council,  none  of  whom 
shall  represent  the  states  involved,  without  suggestion  from  either  party,  and 
the  committee  thus  constituted  shall  frame  the  questions  to  be  submitted  and  the 
scope  of  the  inquiry,  and  thereafter  if  either  party  shall  withdraw  it  shall  be 
deemed  to  have  refused  to  submit  the  matter  involved  to  judicial  or  arbitral 
determination. 

Article  15.  The  Administrative  Council  shall  transmit  to  every  signatory 
power  a copy  of  every  petition  which  may  be  submitted  to  the  Permanent  Court 
of  Arbitration,  and  any  power  affected  thereby  shall  have  the  right  to  present 
through  the  Administrative  Council  any  matter  bearing  on  the  question  involved 
which  it  sees  fit  to  do,  and  any  matter  so  presented  shall  be  transmitted  by  the 
Administrative  Council  to  every  signatory  power. 

Article  i6.  An  agreement  to  submit  a controversy  to  or  appearance  and  sub- 
mission of  the  case  in  the  Permanent  Court  of  Arbitration  implies  an  obligation 
to  submit  in  good  faith  to  the  decision  of  the  court  on  the  question  submitted. 

Article  17.  After  a controversy  has  been  submitted,  the  court  may  determine 
whether  the  testimony  shall  be  taken  by  the  court  or  by  a commission,  and  in 
the  latter  case  the  court  may  delegate  one  or  more  of  its  judges  or  appoint  com- 
missioners to  take  the  testimony ; and,  on  consent  of  the  parties,  the  court  may 
direct  where,  when  and  how  the  testimony  shall  be  taken  and  in  what  proportion 
the  expense  shall  be  borne,  disbursed  and  apportioned ; but  except  as  otherwise 
stipulated,  or  in  case  the  parties  cannot  agree,  the  procedure  in  taking  testimony 
shall  be  the  same  as  provided  in  Chapter  ...  of  the  Convention  for  the  Pacific 
Settlement  of  International  Disputes,  relating  to  commissions  of  inquiry,  except 
that  the  testimony  shall  be  transmitted  to  the  court  without  expressions  of 
opinion. 

Article  18.  If  two  powers  agree  to  submit  a difference  to  the  Permanent 
Court  of  Arbitration  and  desire  a summary  hearing  and  determination,  they  may 
request  a special  detail  either  of  three  or  of  five  judges,  and  may  select  the  judges 
to  compose  the  detail  by  striking  alternately  from  the  list  of  judges  an  equal 
number  until  the  desired  number  shall  remain. 

Powers  desiring  to  form  a Commission  of  Inquiry  for  a particular  purpose 
may  resort  to  the  Permanent  Court  of  Arbitration  and  constitute  the  commission 
in  the  above  described  manner,  and  add  thereto  an  equal  number  of  nationals 
from  each  of  the  parties. 

Article  19.  The  judges  of  the  Permanent  Court  of  Arbitration  may  constitute 
the  division  of  the  High  Court  of  Prize  established  by  Chapter  ...  of  this 
convention. 

The  personnel  of  the  division  of  the  High  Court  may  be  modified  to  meet  the 
regulations  and  requirements  of  the  convention  creating  the  Court  of  Prize. 


84 


THE  STATUS  OF  THE 


(3)  DRAFT  CONVENTION  FOR  THE  ESTABLISHMENT 
OF  THE  COURT  OF  ARBITRAL  JUSTICE  ^ 

Part  I.  Constitution  of  the  Judicial  Arbitration  Court. 

Article  i.  With  a view  to  promoting  the  cause  of  arbitration, 
the  contracting  powers  agree  to  constitute,  without  altering  the 
status  of  the  Permanent  Court  of  Arbitration,  a Judicial  Arbitra- 
tion Court,  of  free  and  easy  access,  composed  of  judges  represent- 
ing the  various  juridical  systems  of  the  world,  and  capable  of  in- 
suring continuity  in  jurisprudence  of  arbitration. 

Article  2.  The  Judicial  Arbitration  Court  is  composed  of  judges 
and  deputy  judges  chosen  from  persons  of  the  highest  moral  repu- 
tation, and  all  fulfilling  conditions  qualifying  them,  in  their  re- 
spective countries,  to  occupy  high  legal  posts,  or  be  jurists  of 
recognized  competence  in  matters  of  international  law. 

The  judges  and  deputy  judges  of  the  court  are  appointed,  as 
far  as  possible,  from  the  members  of  the  Permanent  Court  of 
Arbitration.  The  appointment  shall  be  made  within  the  six  months 
following  the  ratification  of  the  present  convention. 

Article  3.  The  judges  and  deputy  judges  are  appointed  for 
a period  of  twelve  years,  counting  from  the  date  on  which  the 
appointment  is  notified  to  the  Administrative  Council  created  by 
the  convention  for  the  pacific  settlement  of  international  disputes. 
Their  appointments  can  be  renewed. 

Should  a judge  or  deputy  judge  die  or  retire,  the  vacancy  is 
filled  in  the  manner  in  which  his  appointment  was  made.  In  this 
case,  the  appointment  is  made  for  a fresh  period  of  twelve  years. 

Article  4.  The  judges  of  the  Judicial  Arbitration  Court  are 
equal  and  rank  according  to  the  date  on  which  their  appointment 
was  notified.  The  judge  who  is  senior  in  point  of  age  takes 
precedence  when  the  date  of  notification  is  the  same. 

The  deputy  judges  are  assimilated,  in  the  exercise  of  their 
functions,  with  the  judges.  They  rank,  however,  below  the  latter. 

Article  5.  The  judges  enjoy  diplomatic  privileges  and  immuni- 
ties in  the  exercise  of  their  functions,  outside  their  own  country. 

Before  taking  their  seats,  the  judges  and  deputy  judges  must 

^ La  Deuxieme  Conf  erence  Internationale  de  la  Paix,  Actes  et  Documents, 
Vol.  I,  pp.  702-707;  Scott’s  Texts  of  the  Peace  Conferences  at  The  Hague  of 
1899  and  1907,  pp.  141-154. 


INTERNATIONAL  COURT  OF  JUSTICE 


85 


swear,  before  the  Administrative  Council,  or  make  a solemn  affirma- 
tion to  exercise  their  functions  impartially  and  conscientiously. 

Article  6.  The  court  annually  nominates  three  judges  to  form 
a special  delegation  and  three  more  to  replace  them  should  the 
necessity  arise.  They  may  be  re-elected.  They  are  balloted  for. 
The  persons  who  secure  the  largest  number  of  votes  are  considered 
elected.  The  delegation  itself  elects  its  president,  who,  in  default 
of  a majority,  is  appointed  by  lot. 

A member  of  the  delegation  cannot  exercise  his  duties  when  the 
power  which  appointed  him,  or  of  which  he  is  a national,  is  one 
of  the  parties. 

The  members  of  the  delegation  are  to  conclude  all  matters  sub- 
mitted to  them,  even  if  the  period  for  which  they  have  been  ap- 
pointed judges  has  expired. 

Article  7.  A judge  may  not  exercise  his  judicial  functions  in 
any  case  in  which  he  has,  in  any  way  whatever,  taken  part  in  the 
decision  of  a national  tribunal,  of  a tribunal  of  arbitration,  or  of 
a commission  of  inquiry,  or  has  figured  in  the  suit  as  counsel  or 
advocate  for  one  of  the  parties. 

A judge  cannot  act  as  agent  or  advocate  before  the  Judicial 
Arbitration  Court  or  the  Permanent  Court  of  Arbitration,  before 
a special  tribunal  of  arbitration  or  a commission  of  inquiry,  nor 
act  for  one  of  the  parties  in  any  capacity  whatsoever  as  long  as 
his  appointment  lasts. 

Article  8.  The  court  elects  its  president  and  vice-president  by 
an  absolute  majority  of  the  votes  cast.  After  two  ballots,  the 
election  is  made  by  a bare  majority  and,  in  case  the  votes  are 
even,  by  lot. 

Article  9.  The  judges  of  the  Judicial  Arbitration  Court  receive 
an  annual  salary  of  6,000  Netherland  florins.  This  salary  is  paid 
at  the  end  of  each  half  year,  reckoned  from  the  date  on  which  the 
court  meets  for  the  first  time. 

In  the  exercise  of  their  duties  during  the  sessions  or  in  the 
special  cases  covered  by  the  present  convention,  they  receive  the 
sum  of  100  florins  per  diem.  They  are  further  entitled  to  receive 
a traveling  allowance  fixed  in  accordance  with  regulations  existing 
in  their  own  country.  The  provisions  of  the  present  para- 
graph are  applicable  also  to  a deputy  judge  when  acting  for  a 
judge. 

These  emoluments  are  included  in  the  general  expenses  of  the 
court  dealt  with  in  Article  31,  and  are  paid  through  the  Interna- 


86 


THE  STATUS  OF  THE 


tional  Bureau  created  by  the  convention  for  the  pacific  settlement 
of  international  disputes. 

Article  lo.  The  judges  may  not  accept  from  their  own  govern- 
ment or  from  that  of  any  other  power  any  remuneration  for  services 
connected  with  their  duties  in  their  capacity  of  members  of  the 
court. 

Article  ii.  The  seat  of  the  Judicial  Court  of  Arbitration  is  at 
The  Hague,  and  cannot  be  transferred,  unless  absolutely  obliged 
by  circumstances,  elsewhere. 

The  delegation  may  choose,  with  the  assent  of  the  parties  con- 
cerned, another  site  for  its  meetings,  if  special  circumstances  render 
such  a step  necessary. 

Article  12.  The  Administrative  Council  fulfills  with  regard  to 
the  Judicial  Court  of  Arbitration  the  same  functions  as  to  the 
Permanent  Court  of  Arbitration. 

Article  13.  The  International  Bureau  acts  as  registry  to  the 
Judicial  Court  of  Arbitration,  and  must  place  its  offices  and  staff 
at  the  disposal  of  the  court.  It  has  charge  of  the  eirchives  and 
carries  out  the  administrative  work. 

The  Secretary-General  of  the  Bureau  discharges  the  functions 
of  registrar. 

The  necessary  secretaries  to  assist  the  registrar,  translators  and 
short-hand  writers  are  appointed  and  sworn  in  by  the  court. 

Article  14.  The  court  meets  in  session  once  a year.  The  ses- 
sion opens  the  third  Wednesday  in  June  and  lasts  until  all  the 
business  on  the  agenda  has  been  transacted. 

The  court  does  not  meet  in  session  if  the  delegation  considers 
that  such  meeting  is  unnecessary.  However,  when  a power  is 
party  in  a case  actually  pending  before  the  court,  the  pleadings  in 
which  are  closed,  or  about  to  be  closed,  it  may  insist  that  the 
session  should  be  held. 

When  necessary,  the  delegation  may  summon  the  court  in  ex- 
traordinary session. 

Article  15.  A report  of  the  doings  of  the  court  shall  be  drawn 
up  every  year  by  the  delegation.  This  report  shall  be  forwarded 
to  the  contracting  powers  through  the  International  Bureau.  It 
shall  also  be  communicated  to  the  judges  and  deputy  judges  of 
the  court. 

Article  16.  The  judges  and  deputy  judges,  members  of  the 
Judicial  Arbitration  Court,  can  also  exercise  the  functions  of  judge 
and  deputy  judge  in  the  International  Prize  Court. 


INTERNATIONAL  COURT  OF  JUSTICE 


87 


Part  II.  Competency  and  Procedure. 

Article  17.  The  Judicial  Court  of  Arbitration  is  competent  to 
deal  with  all  cases  submitted  to  it,  in  virtue  either  of  a general 
undertaking  to  have  recourse  to  arbitration  or  of  a special  agree- 
ment. 

Article  18.  The  delegation  is  competent: 

1.  To  decide  the  arbitration  referred  to  in  the  preceding  article, 
if  the  parties  concerned  are  agreed  that  the  summary  procedure, 
laid  down  in  Part  IV,  Chapter  IV,  of  the  convention  for  the  pacific 
settlement  of  international  disputes  is  to  be  applied; 

2.  To  hold  an  inquiry  under  and  in  accordance  with  Part  III 
of  the  said  convention,  in  so  far  as  the  delegation  is  intrusted  with 
such  inquiry  by  the  parties  acting  in  common  agreement.  With 
the  assent  of  the  parties  concerned,  and  as  an  exception  to  Article  7, 
paragraph  i,  the  members  of  the  delegation  who  have  taken  part 
ill  the  inquiry  may  sit  as  judges,  if  the  case  in  dispute  is  submitted 
to  the  arbitration  of  the  court  or  of  the  delegation  itself. 

Article  19.  The  delegation  is  also  competent  to  settle  the 
compTomis  referred  to  in  Article  52  of  the  convention  for  the 
pacific  settlement  of  international  disputes  if  the  parties  are  agreed 
to  leave  it  to  the  court. 

It  is  equally  competent  to  do  so,  even  when  the  request  is  only 
made  by  one  of  the  parties  concerned,  if  all  attempts  have  failed 
to  reach  an  understanding  through  the  diplomatic  channel,  in  the 
case  of — 

1.  A dispute  covered  by  a general  treaty  of  arbitration  con- 
cluded or  renewed  after  the  present  convention  has  come  into 
force  providing  for  a compromis  in  all  disputes,  and  not  either 
explicitly  or  implicitly  excluding  the  settlement  of  the  compromis. 
from  the  competence  of  the  delegation.  Recourse  cannot,  how- 
ever, be  had  to  the  court  if  the  other  party  declares  that  in  its 
opinion  the  dispute  does  not  belong  to  the  category  of  questions 
to  be  submitted  to  compulsory  arbitration,  unless  the  treaty  of 
arbitration  confers  upon  the  Arbitration  Tribunal  the  power  of 
deciding  this  preliminary  question. 

2.  A dispute  arising  from  contract  debts  claimed  from  one 
power  by  another  power  as  due  to  its  nationals,  and  for  the  settle- 
ment of  which  the  offer  of  arbitration  has  been  accepted.  This 
arrangement  is  not  applicable  if  acceptance  is  subject  to  the  con- 
dition that  the  compromis  should  be  settled  in  some  other  way^ 


88 


THE  STATUS  OF  THE 


Article  20.  Each  of  the  parties  concerned  may  nominate  a 
judge  of  the  court  to  take  part,  with  power  to  vote,  in  the  examina- 
tion of  the  case  submitted  to  the  delegation. 

If  the  delegation  acts  as  a commission  of  inquiry,  this  task  may 
be  intrusted  to  persons  other  than  the  judges  of  the  court.  The 
traveling  expenses  and  remuneration  to  be  given  to  the  said  per- 
sons are  fixed  and  borne  by  the  powers  appointing  them. 

Article  21.  The  contracting  powers  only  may  have  access  to 
the  Judicial  Arbitration  Court  set  up  by  the  present  con- 
vention. 

Article  22.  The  Judicial  Court  of  Arbitration  follows  the  rules 
of  procedure  laid  down  in  the  convention  for  the  pacific  settlement 
of  international  disputes,  except  in  so  far  as  the  procedure  is  laid 
down  in  the  present  convention. 

Article  23.  The  court  determines  what  language  it  will  itself 
use  and  what  languages  may  be  used  before  it. 

Article  24.  The  International  Bureau  serves  as  channel  for  all 
communications  to  be  made  to  the  judges  during  the  interchange 
of  pleadings  provided  for  in  Article  63,  paragraph  2,  of  the  con- 
vention for  the  pacific  settlement  of  international  disputes. 

Article  25.  For  all  notices  to  be  served,  in  particular  on  the 
parties,  witnesses  or  experts,  the  court  may  apply  direct  to  the 
government  of  the  state  on  whose  territory  the  service  is  to  be 
carried  out.  The  same  rule  applies  in  the  case  of  steps  being  taken 
to  procure  evidence. 

The  requests  addressed  for  this  purpose  can  only  be  rejected 
when  the  power  applied  to  considers  them  likely  to  impair  its 
sovereign  rights  or  its  safety.  If  the  request  is  complied  with,  the 
fees  charged  must  only  comprise  the  expenses  actually  incurred. 

The  court  is  equally  entitled  to  act  through  the  power  on  whose 
territory  it  sits. 

Notices  tO'  be  given  to  parties  in  the  place  where  the  court  sits 
may  be  served  through  the  International  Bureau. 

Article  26.  The  discussions  are  under  the  control  of  the  Presi- 
dent or  Vice-President,  or,  in  case  they  are  absent  or  cannot  act, 
of  the  senior  judge  present. 

The  judge  appointed  by  one  of  the  parties  cannot  preside. 

Article  27.  The  court  considers  its  decisions  in  private,  and 
the  proceedings  are  secret. 

All  decisions  are  arrived  at  by  a majority  of  the  judges  present. 
If  the  number  of  judges  is  even  and  equally  divided,  the  vote  of 


INTERNATIONAL  COURT  OF  JUSTICE  89 

the  junior  judge,  in  the  order  o£  precedence  laid  down  in  Article 
4,  paragraph  i,  is  not  counted. 

Article  28,  The  judgment  of  the  court  must  give  the  reasons 
on  which  it  is  based.  It  contains  the  names  of  the  judges  taking 
part  in  it ; it  is  signed  by  the  president  and  registrar. 

Article  29.  Each  party  pays  its  own  costs  and  an  equal  share 
of  the  costs  of  the  trial. 

Article  30.  The  provisions  of  Articles  21  to  29  are  applicable 
by  analogy  to  the  procedure  before  the  delegation. 

When  the  right  of  attaching  a member  to  the  delegation  has 
been  exercised  by  one  of  the  parties  only,  the  vote  of  the  member 
attached  is  not  recorded  if  the  votes  are  evenly  divided. 

Article  31.  The  general  expenses  of  the  court  are  borne  by 
the  contracting  powers. 

The  Administrative  Council  applies  to  the  powers  to  obtain  the 
funds  requisite  for  the  working  of  the  court. 

Article  32.  The  court  itself  draws  up  its  own  rules  of  procedure, 
which  must  be  communicated  to  the  contracting  powers. 

After  the  ratification  of  the  present  convention,  the  court  shall 
meet  as  early  as  possible  in  order  to  elaborate  these  rules,  elect 
the  President  and  Vice-President  and  appoint  the  members  of  the 
delegation. 

Article  33.  The  court  may  propose  modifications  in  the  pro- 
visions of  the  present  convention  concerning  procedure.  These 
proposeds  are  communicated  through  the  Netherland  Government 
to  the  contracting  powers,  which  will  consider  together  as  to  the 
measures  to  be  taken. 


Part  III.  Final  Provisions. 

Article  34.  The  present  convention  shall  be  ratified  as  soon 
as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A pToces-verbal  of  the  deposit  of  each  ratification  shall  be 
drawn  up,  of  which  a duly  certified  copy  shall  be  sent  through  the 
diplomatic  channel  to  all  the  signatory  powers. 

Article  35.  The  convention  shall  come  into  force  six  months 
after  its  ratification. 

It  shall  remain  in  force  for  twelve  years,  and  shall  be  tacitly 
renewed  for  periods  of  twelve  years,  unless  denounced. 


90 


THE  STATUS  OF  THE 


The  denunciation  must  be  notified,  at  least  two  years  before 
the  expiration  of  each  period,  to  the  Netherland  Government,  which 
will  inform  the  other  powers. 

The  denunciation  shall  only  have  effect  in  regard  to  the  notify- 
ing power.  The  convention  shall  continue  in  force  as  far  as  the 
other  powers  are  concerned. 


INTERNATIONAL  COURT  OF  JUSTICE 


91 


(4)  PROPOSAL  FOR  ESTABLISHMENT  OF  A COURT 
OF  ARBITRAL  JUSTICE  BY  AND  FOR  GERMANY, 
THE  UNITED  STATES,  AUSTRIA-HUNGARY, 
FRANCE,  GREAT  BRITAIN,  ITALY,  JAPAN,  THE 
NETHERLANDS,  RUSSIA. 

His  Majesty,  the  German  Emperor,  King  of  Prussia,  etc.: 

Considering  that  the  Second  Peace  Conference,  in  the  Final  Act 
of  October  18,  igoy,  recommended  to  the  Signatory  Powers  the 
adoption  of  the  draft,  appended  to  said  act,  of  a convention  for  the 
establishment  of  a Court  of  Arbitral  Justice  and  the  putting  it  into 
force  as  soon  as  an  agreement  should  be  reached  on  the  choice  of 
the  judges  and  the  organisation  of  the  court; 

Being  desirous  of  contributing  toward  the  realisation  of  the 
recommendation  thus  expressed; 

Deeming  that,  if  it  is  impossible  as  yet  to  reach  a general  agree- 
ment for  putting  into  force  the  draft  thus  recommended,  it  is 
nevertheless  useful  to  establish  a Court  of  Arbitral  Justice  for  such 
powers  as  may  be  willing  to  co-operate  in  its  establishment  and 
which  may  operate  pending  subsequent  permanent  rules; 

Being  persuaded  that  such  a measure,  essentially  provisional, 
does  not  in  any  way  prejudice  any  agreement  which  may  be  reached 
later  for  the  permanent  organisation  of  the  Court  of  Arbitral  Jus- 
tice, and  that  such  an  agreement  is  particularly  likely  to  be  reached 
at  the  Third  Peace  Conference; 

Have  decided  to  conclude  a convention  to  insure  the  putting  into 
force  of  the  aforementioned  draft,  and  have  appointed  as  their 
plenipotentiaries,  to  wit: 

Who,  after  depositing  their  full  powers,  found  to  be  in  due  and 
proper  form,  have  agreed  upon  the  following  provisions: 


Article  i 

The  contracting  powers  agree  to  put  into  force  the  draft,  ap- 
pended to  the  Final  Act  of  the  Second  Peace  Conference,  of  a 
convention  relating  to  the  establishment  of  a Court  of  Arbitral 
Justice,  making  thereto  the  necessary  additions  as  stated  below. 
The  said  draft,  thereby  made  the  standing  rules  binding  the  con- 


92 


THE  STATUS  OF  THE 


trading  parties,  is  appended  to  the  present  convention  and  forms  an 
integral  part  thereof. 

Article  2. 

The  Court  of  Arbitral  Justice  shall  he  composed  of  nine  judges, 
five  constituting  a quorum. 


Article  3. 

Each  contracting  power  shall  appoint  a judge  to  serve  during 
the  life  of  the  convention.  The  judges  thus  appointed  take  rank 
in  accordance  with  the  date  of  their  assumption  of  office. 

Article  4, 

The  Administrative  Council  referred  to  in  Article  12  of  the 
appended  rules  shall  comprise  the  diplomatic  representatives  of  the 
contracting  powers  accredited  to  The  Hague  and  the  Minister  for 
Foreign  Affairs  of  The  Netherlands. 

Article  5. 

In  derogation  of  Article  21  of  the  rules,  action  may  he  brought 
before  the  Court  of  Arbitral  Justice  and  its  delegation  provided 
for  in  Article  6 of  the  rules,  even  by  non-contracting  powers. 

If  the  controversy  submitted  to  the  Court  of  Arbitral  Justice  or 
its  delegation  he  between  a contracting  and  a non-contracting 
power,  the  latter  shall  have  the  right  to  appoint  a judge  to  take 
part  in  the  trial  and  determination  of  the  case.  If  the  powers  in 
controversy  he  non-contracting  powers,  each  one  thereof  shall  have 
the  right  to  appoint  a judge  to  take  part  in  the  trial  and  determina- 
tion of  the  case. 

In  such  cases  the  remuneration  of  the  judges  appointed  by  the 
non-contracting  power  or  powers  shall  be  paid  by  the  appointing 
power,  and  the  expenses  and  fees  caused  by  the  trial  and  deter- 
mination of  the  case  submitted  by  a non-contracting  power  or 
powers  shall  he  defrayed  by  the  non-contracting  power  or  powers 
to  the  extent  determined  by  the  court  or  its  delegation,  which  shall 
take  into  account  that  one  or  both  of  the  litigating  parties  is  a 
non-contracting  power,  or  that  the  court  is  convened  especially  for 
the  case. 


INTERNATIONAL  COURT  OF  JUSTICE  93 

Article  6. 

Notwithstanding  the  terms  of  Article  of  the  rules,  the  parties 
may,  in  every  case,  claim  the  right  to  use  their  own  language. 

Article  7. 

The  general  expenses  of  the  Court  of  Arbitral  Justice  shall  he 
equally  borne  by  the  contracting  powers. 

The  Administrative  Council  shall  apply  to  the  contracting 
powers  in  order  to  obtain  the  necessary  funds  for  the  operation  of 
the  court. 

Article  8. 

The  present  convention  shall  he  ratified  and  the  ratification 
deposited  at  The  Hague  as  soon  as  seven  powers  shall  be  ready  to 
ratify  and  can  furnish  to  the  court  five  judges. 


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